|
Non
Illegitimi Carborundum Est
warning:
THIS PAGE IS FOR INFORMATIONAL PURPOSES ONLY AND NOT INTENDED AS LEGAL
ADVICE.
This Legal Memorandum memorializes
a personal experience of mine. Stan Tenen and his organization, the Meru
Foundation, have alleged that some specific content published in my book is
derived from Dan Winter's alleged plagiarism of their work. This
Memorandum was written in response to their allegations. Bottom line is
that their claims have no merit. My work is not derived from their work or
any alleged plagiarism of that work. My right to publish the specific
content in my book that they find objectionable is clearly supported by
prevailing law. In addition, strong legal precedents from higher
courts assure that (1) the injunction obtained against Dan Winter does not
apply to me or my publisher, and (2) their stipulated
judgment if reopened and reconsidered would be thrown out because it is
constitutionally invalid and statutorily unenforceable.
Though I am not an attorney, I have
over 20 years experience as a litigation paralegal and was certified by the
American Bar Association. I have represented myself at the trial level in
court and prevailed -- once on a matter involving censorship
issues. I have written similar documents for several prestigious law firms
in the southwest, and trained new attorneys fresh out of law school
because ordinarily they have no understanding of legal procedure or how the
court system works. In order to determine if my
understanding of the law was correct, I asked a nationally renowned
specialist in First Amendment, intellectual property rights, and appellate law
to review the Memorandum. This attorney has successfully argued before the
United States Supreme Court on such matters. He assured me that the
Memorandum was well-researched and analyzed, exceptionally well-written, and
right on point.
Therefore, in order to provide
support to other authors undergoing similar experiences --
particularly those who may also be victims of Tenen's witch hunt -- I've posted this Memorandum
for their information. All pertinent
statutory and case law is fully cited for reference purposes in the event they
want to look up the law for themselves. Although the Memorandum is written
in legal format and lingo, I've tried to define uncommon terms for the benefit
of the layperson. If anyone has a question on how to read the specific
citations, please feel free to contact me. It is standard to include
them in legal documents of this type. However, the layperson need not know
exactly how to interpret them for comprehending the Memorandum content. In
addition, the exhibits to the Memorandum are not included as they were primarily
for the benefit of my publisher. If anyone wants to know where they
can find copies of the exhibits, please contact me and I will provide them with
the corresponding reference.
The law is not static -- it
can and does change from time to time. Therefore, I recommend that anyone
with a serious legal problem involving these issues seek the advice of a
competent attorney.
The first part of the Memorandum
explains why the specific material published in my book that is objectionable to
the Tenens is not derived from their work or any alleged plagiarism of that
work. It also offers proof that Tenen's claim that there is no "prior
art" for the concept behind his "flame letters" is false.
The second half of the Memorandum includes an analysis of the pertinent ruling case and statutory
law. Enjoy!
please see
AFTERNOTE
at bottom
of page
regarding
the
outcome
of this
case
LEGAL
MEMORANDUM
by
Judy Kennedy
© 2005
I. ISSUE
II. BACKGROUND
III. FACTS
IV. THE LAW
A. What Really
Happened in Tenen v. Winter
B.
The Injunction is Void Because It Is a Prior
Restraint and
Does not Comply with Federal Rule of Civil Procedure 65(d) or Constitutional
Amendment 1
C. Balancing First
Amendment Rights with Intellectual Property Interests
1. Copyright
Law 101
2. Fair Use
and Merger
3. Tenen's
Monopoly
D. Possible Remedies
V. CONCLUSION
LEGAL MEMORANDUM
by Judy Kennedy © 2005
I.
ISSUE
Does the injunction against Dan Winter obtained by
the Tenens and the Meru Foundation (hereinafter “Tenen”) in Tenen v.
Winter, 15 F.Supp. 2d.270 (1998) pursuant to Fed. R. Civ. P. 65(d) extend to
me and my actions regarding the publication of specific material in my book?
II.
BACKGROUND
While researching for my book, Beyond the Rainbow:
Renewing the Cosmic Connection Regarding
Spirituality, Extraterrestrials, and Occult Conspiracy, I came across an
interesting and highly relevant article by Stan Tenen in The Noetic Journal
entitled “How to Talk To An Extra-terrestrial” published on the Internet.
I printed out a copy and decided to quote the abstract in Chapter 8 of my
book entitled “Awakening the Dragon: The
Physiology of Awareness” under the subheading about DNA.
Tenen’s article discussed his research regarding the possible
biological and geometric components of the impact of Hebrew letters as one of
the original mystical alphabets. While
doing research online, I came across many other researchers in this same field,
among them, Dan Winter. I decided
to use Tenen as a reference instead of Winter, however,
because of the legal controversy between the two over an issue of
copyright infringement that resulted in an injunction against Winter.
Following standard literary protocol, I requested in
writing permission to quote from and reference Tenen’s article from the
publisher of The Noetic Journal, Richard Amoroso, Director of the Noetic
Advanced Studies Institute. Accordingly,
Dr. Amoroso signed a release granting permission to reprint the copyrighted
excerpt on behalf of the journal and Tenen.
The excerpt was published in positive context, Tenen was given due credit
and the article fully cited on the page of the excerpt, in the endnotes, with an
additional listing in my bibliography as a recommended source.
(See Exhibit 1.)
After my book was published, I sent “thank you” notes
to all authors who had graciously granted me permission to reprint their
copyrighted material. When Tenen
received his note, he called my publisher claiming that he never gave
me permission to reference his work. My
publisher sent Tenen a courtesy copy of my book so that he could see the positive context
in which I quoted him, along with a copy of the signed release. Tenen said that his publisher never contacted him about the
request, and if he had done so, he would not have granted permission because he
did not want to be included in a book that contained references to some
researchers whose work he considered substandard. He actually went through my book over the phone with my
publisher putting everyone I referenced into two categories: acceptable and nonacceptable, nonacceptable meaning “New
Age flake.” To me, this sounded
surprisingly strange and presumptuous coming from an author who regularly
interviews with Art Bell and George Noory on a nightly radio program entitled
“Coast to Coast” that deals mainly with New Age topics – from UFOs,
ghosts, and Big Foot to mystical alphabets, remote viewing, and the latest
advances in modern physics as they might apply to interdimensional travel.
One would think that most authors would wholeheartedly welcome
unsolicited positive commentary and free publicity about their work.
Nevertheless, Tenen admitted he was overly-sensitive and cautious about
the use of his material due to his problems with Winter and therefore demanded
that we completely delete any and all references to him and his work.
Out of courtesy to Tenen and in order to avoid a legal hassle, an
agreement was reached. My publisher
would delete the quotation from Tenen’s article and all references to him and
his work in exchange for publishing substitute text at no cost to me.
My publisher sent Tenen a courtesy copy of the final proof of
my book. Even though we had
completely complied with his request, he was not satisfied. He informed us that the text that I had substituted
created “a more serious problem” than what was there previously. Therefore he demanded that I delete it including a reference
to another author’s work (Paul White) that was similar to his own.
He had not previously mentioned his objection to my referencing White’s
work to my publisher, therefore that paragraph remained untouched in the revised
edition. Tenen is now threatening
litigation in the event that we do not comply with these new demands based on an
allegation that I am subject to the same injunction he obtained against Winter.
III.
FACTS
Prior to discussing the specific law pertinent to this
matter, this section will directly address specific issues raised by Tenen in
his letter dated March 14, 2005, which he claims support his allegations.
First of all, Tenen asserts that his article entitled
“The Shape of Information: How to
Talk to An Extraterrestrial” was a “technical paper, published in a
peer-reviewed journal, and was not written or intended for a general
audience.” This is a complete
mischaracterization. The Noetic
Journal calls itself “an international forum on the cosmology of
consciousness” and strives to be an eclectic publication reaching a diversity
of subscribers, not confined to the constraints of scientific technology.
It is admittedly interdisciplinary in nature and therefore appropriate
for readers in a broad range of disciplines.
From its Statement of Purpose published at http://www.mindspring.com/~noeticj:
Welcome
to The Noetic Journal website. For
the first time in human history there is hope for understanding the nature of
consciousness; this has created a new field of study.
Several journals have already appeared to address the spectrum of
developing issues. However the
scope has not been broad enough to allow unbridled development of the advancing
field. Some cling rigidly to
neobehaviorism or have not grasped the fact that there is more to the nature of
consciousness than reduction to brain or algorithm. The noetic journal seeks to fill this gap by boldly
addressing a complete epistemology that is not just confined to current myopic
limits of scientific phenomenology. Science
is inadequate to complete the task of explaining consciousness without being
drastically reformulated.
The article in question is published on the Internet –
indeed a general audience. The
publisher of the Journal, Dr. Amoroso, reviewed the section of my book where I
intended to insert the excerpt, approved it, and signed the release.
Besides, a child could run a search on any popular search engine with the
key words “how to talk to an extraterrestrial” and this article would appear
among the first three listed! (See
Exhibit 2.) Even in the unlikely event that the Journal was intended for
review among “peers” only – this suggests that Tenen does not consider me
one. After five years of
undergraduate college resulting in a Bachelor’s degree, three years of
graduate school resulting in a Master’s degree in Interdisciplinary Studies,
additional postgraduate doctoral coursework, research and two years of law
school resulting in paralegal certification (notwithstanding extended research
and experience in the field and workplace outside academia), it is likely that
I’ve accrued more educational hours and experience in consciousness studies
than he has. Now that all
references to this article from the book are gone, however, the issue is moot.
I’m only referring to it to illustrate the beginning of a pattern of
mischaracterizations in Tenen’s letter.
The next issue raised in Tenen’s letter is their
objection to the paragraphs that reference Paul White.
The paragraphs read as follows:
Some esoteric literature references a lost mother
tongue or the “language of light” otherwise known as Hiburu.50
A primal seed language, this ancient form of Hebrew is supposed to be a
natural language, the forms of the letters emerging from phosphene flare
patterns in the brain. These
alphabetic shapes begin in a spinning vortex, translating into light, embodied
neurologically into our biological being.
Author Paul White reports that many contemporary
scientists see DNA as a “shimmering waveform configuration” resembling the
Qabalistic Tree of Life. It’s a
live vibrating process – not a static structure, easily modified by light,
radiation, magnetic fields or sonic pulses.
He suggests this “language of light” might well be the legacy of
Thoth/Enoch.51 This
description of DNA merges well with the experiences related by the subjects who
participated in Dr. Strassman’s DMT studies referenced earlier.
Many subjects perceived a connection between DNA and alphabetic and
numerical characters.
(Exhibit 3 is a copy of page 461 and 462 from the book
containing these paragraphs and the added text. Exhibit 4 is a copy of the actual Paul White article “The
Secrets of Thoth” where I obtained this information and which was fully cited
in my book in the endnotes and bibliography.)
Tenen claims that the court concluded there was no “prior
art” for the concept of generating alphabetic forms from spinning vortices,
and its origins could only come from two sources:
Tenen’s work or Winter’s plagiary of that work.
He alleges that the primary links to this article are from Winter’s
website, so that this information must be treated as “fruit of the poisoned
tree” meaning that usage of this information in any form is illegal because it
was originally tainted by Winter’s plagiarism.
First of all, the URL that I cited as the source of this article in the
book was inaccurate to begin with, basically a misprint, and no longer exists.
The article was actually downloaded on March 2, 2002 from the URL listed
at the bottom of the page: http://www.newage.com/au/library/thoth.html. (See Exhibit 4.) This
web site was not published by Dan Winter. If
Tenen feels that Paul White copied his work (which is highly unlikely for
reasons soon stated,) then his issue is with Paul White – not me.
As a freelance author/journalist, I had every right to reference and cite
that article according to law which will be reviewed shortly.
An article in the New Age magazine Atlantis Rising
by Cynthia Gage about an interview with Tenen and his work entitled “Secrets
of the Hebrew Letters” contradicts Tenen’s assertion. In describing how Tenen came up with the idea for his
sculptures, Gage writes, “Though the realization was an instantaneous Aha!, it
took him years to mathematically perfect the shape of the hand model, which
incorporates fourteen explicit features representing aspects of western
philosophies and is based on a spiral used in art throughout the ancient
world, most notably under the Egyptian Eye of Horus.”
(Emphasis added.) (See Exhibit 5.) A
“spiral used in art throughout the ancient world” qualifies as “prior
art.” It is far reaching
for Tenen to assume he has sole authority and jurisdiction over how others
interpret this ancient art. Generating
all forms from spirals and vortices, including alphabetical figures, is a
natural concept that has been explored in esoteric art and science throughout
the ages, as will be shown.
Next, Tenen asserts that the text that took the place of
his excerpt is “problematic in several ways.”
The new excerpt is as follows and can viewed for purpose of context in
Exhibit 3:
DNA is the matrix of biological being – the
juncture between force and form. The
double helix emerges from a spiraling vortex that spawned all the alphabets of
our sacred languages according to researchers in sacred geometry.
There is really no such thing as “sacred” geometry any more than
there is “sacred” anything. Once we make something “sacred” we separate it from the
rest, exclusionary thinking sets in, and intellectual elitism rears its ugly
head(s). A search on the Internet
regarding DNA, Hebrew letters, and hands will show you some.
Mathematical systems for decoding religious texts written in Hebrew or
any other “sacred” alphabet are quote common.
But these systems are not the best way or only way to make sense of these
texts. The oldest and most reliable
method, as always, is meditation. And
no one can “own” the ideas that emerge from that because they are
expressions of spiritual principle.
The Hermetic Axiom – as above, so below – teaches
that all geometry is divine. The
basis of the logarithmic spiral is the Golden Section seen in nature and in
Euclid’s 5 by 8 rectangle demonstrating that the lesser part is to the greater
part as is the greater part to the whole. This
also reveals the spiritual significance of the Perfect 5th and the
octave in music. The lines of the
pentagram, a five-pointed star representing the human being, are divided in
exact extreme and mean proportion to the Golden Section.
Five is also the number of mediation.
We are children of the stars, or in Biblical terms, man is the mediator
between God and nature. We have five senses and five fingers on each hand.
We use our hands to “sense” reality, integrating inner perceptions
with externals. Hands are primary
communication through gesture. That
the hands can be visualized as spiraling geometric shapes or letters of the
alphabet is nothing new. This
premise underlies sign language and the art of mudra – gestures of power.
Mudra is a Sanskrit word meaning “sign” or
“seal.” The root “mud”
means to please or delight. “Dru”
means to draw forth. Therefore, the
performance of mudras gives pleasure to the object of reference, which in turn
rebounds on the practitioner. It is
a visual alphabet that obtains results that go beyond ordinary speech, much like
music. But instead of playing a
musical instrument, the hands are playing with prana or Qi – cosmic energy.52
Almost all iconographic representations of spiritual
leaders and saints show them exhibiting some kind of mudra or symbolic gesture.
Mudras are common to both Eastern and Western traditions, and each one
has a specific effect. Many forms
of Qigong bodywork such as Tai Chi and Yoga incorporate the use of mudras into
their practices. So you see, there
are many turns, twists, and levels in the cosmic spiral of energy awareness of
which DNA is only one.
First, Tenen alleges that “the Internet search you
suggest will immediately turn up Mr. Winter’s “defense” of his plagiary of
our materials.” It does not.
On the contrary, using those exact key words in that order (DNA, hebrew
letters, hands) on the three most popular search engines (Webcrawler, Google,
and Yahoo) immediately brings up Tenen’s own websites – www.meru.org and
www.meetingtent.com! (See Exhibit 6.) Seems
like he would be delighted with this. The
meeting tent website is where Tenen’s products and books are sold.
Gage’s article previously mentioned also appears in the first few
links. In addition, the first words
of the article on the www.halexandria link give tribute to Tenen and his
organization, the Meru Foundation. No
law forbids suggesting an Internet search.
In fact, in the interests of free inquiry such research is typically
encouraged in a democracy. Freedom
of information, expression and of the press is what the First Amendment of our
United States Constitution is all about. And
why is it First? Because it’s
most important – that’s why! To
enjoin someone from free inquiry and in particular, to enjoin them from even suggesting
and encouraging free inquiry, is tantamount to censorship.
Specific case law on point will be discussed in the Law section of this
Memorandum.
Tenen makes several threats in his letter.
Take for instance, this paragraph:
Now that you know that this material by Mr. Winter is
disparagement, damaging, and as such is prohibited by the Court, you have a
responsibility to refrain from referring others to it.
Since Federal Judge Charles J. Siragusa has retained jurisdiction in all
matters pertaining to this case, he would be the presiding judge in any action
that follows from Mr. Winter’s refusal to obey the Court Orders – such as
Mr. Winter’s posting his “defense” of his plagiary and disparagement
illegally on the Internet, and your subsequent finding it, reading it, and
referring others to it. Meru
Foundation’s Board of Directors is taking the matter of the spread of Mr.
Winter’s disparagement, both by this agents and by third parties, with
increasing seriousness, as it is affecting our ability to gain support for this
work. (Emphasis added.)
While I have read much of what Winter has published online,
never have I “found” nor “read” a defense of his plagiary, and Tenen
would be hard-pressed to prove otherwise. Even
if I had, the last thing I would do is refer people to it, although such action
would be protected under the First Amendment.
No reasonable person in reading the new excerpt from my book would come
close to inferring any such motivation or intention, let alone attribute such
statements to any particular persons. To
do so suggests delusions of reference and paranoia.
Further, Tenen alleges that this new text “...has the
effect of renewing, and spreading, the disparagement that Mr. Winter now once
again is encouraging.” This is
quite a reach – especially when the text makes no reference to Tenen, Winter
or their work. Tenen continues:
It is Mr. Winter who originated the idea that we are
trying to “own sacred concepts” or “own the Hebrew alphabet.”
This is exactly the kind of language that the Court said he could not
repeat... Readers who follow your advice and perform this Internet search will
understand that when you refer to “intellectual elitism,” “owning” the
ideas, and remark that “hands being visualized as spiraling geometric shapes
or letter of the alphabet” are “nothing new” (for example), you are
referring in derogatory terms to Meru Foundation and the Tenens, to our
research, and to our effort to protect its integrity from ill-intended people
such as Mr. Winter and his followers. As
such, you are repeating Mr. Winter’s arguments, which are prohibited by the
Court.
Such an impossible leap in logic is a clear nonsequitur.
First, Tenen wrongly assumes that I am talking about them and projects
meanings into my words that just aren’t there.
My statement about intellectual elitism is a general, rhetorical
assertion and an expression of my opinion about the current state of much of
this kind of research. I have been
campaigning against all forms of intellectual elitism since graduate school and
have written on this topic in the past, long before I became familiar with this
research and Tenen’s work in particular.
In fact, I was so concerned about the damaging effects of intellectual
elitism upon graduate students in our academic institutions that in 1982 I
founded the “Anti-Ivory Tower League” – an organization dedicated to
protecting and defending the civil liberties of students who were discriminated
against for expressing unorthodox ideas and spiritual sentiments.
(See Exhibit 7.) Similar
thinking is published all over the Internet.
(See Exhibit 8, the article entitled “Spirituality and Intellectual
Property Rights” and the editorial opinion entitled “Dan Winter’s Work
Again Available Online” by Christine Hall.)
All opinion is protected speech as long it is not slanderous or libelous.
Hall’s two articles are published online at AlternativeApproaches.com,
an alternative, holistic-based magazine that often features articles by high
profile authors in related genres. That
they address the Tenen and Winter conflict directly is even more to the point.
The fact that someone may take a stand against what they perceive as
“intellectual elitism” does not mean that they automatically side with Dan
Winter in this conflict. That is
purely paranoid conjecture. Dan
Winter, myself, and anyone could all be guilty of intellectual elitism from time
to time. I was pointing fingers at a phenomenon – not a person.
Remember, originally I wanted to promote Tenen as an authority on this
subject yet he declined the honor and privilege.
To allege that my opinion about a phenomenon is the same as
spreading Winter’s arguments is ludicrous.
Similarly, to suggest that
Winter “originated” the idea about “owning” sacred concepts is also
absurd. This idea has been shared
and debated by great minds for centuries. Common
ideas are often shared and circulated by colleagues in the same discipline
seeking to make a name for themselves and this often leads to conflict,
unfortunately. If Winter asserted
such an idea or opinion, then his expression of that idea or opinion is
certainly his own, but not necessarily the idea or opinion itself.
If other people share similar thoughts, ideas, and opinions, that does
not mean that they got them from Dan Winter!
My opinions are my own and no one can prove otherwise.
Likewise, when I write “Once we make something “sacred” we separate
it from the rest, exclusionary thinking sets in...”
I first formed that opinion at the ripe old age of 18 when I heard
Bonewits during a lecture called “A Psychic Exploration of Music” at the
Gnostic Aquarian Festival in 1974. Her
language is highly similar, and I reference a tape-recording of this lecture in
my bibliography. (See Exhibit 9.) Therefore, if I was influenced by anyone with regard to that
line of thinking, it was by Bonewits in 1974, not Winter.
Winter was ordered to refrain from expressing his opinions
in a manner or context directly disparaging to Tenen, which would necessitate
identifying him by name. Tenen’s
name no longer appears anywhere in my book.
In addition, the Court did not order Winter – or others by extension
– to refrain from having ideas and opinions, however similar to Winter’s
they might be. The Order
specifically states that Winter shall refrain from “making or publishing any
oral or written disparaging or unsubstantiated statement, or any statement
inconsistent with these findings of act, to any person or entity about the
quality, originality, competence, motives or religious status of plaintiffs or
about their published or unpublished works.”
(See Exhibit 10.) According
to the Federal Rules of Civil Procedure, this injunction only applies to others
if they acted directly in concert with Winter in 1998.
I have never met Winter, nor spoken or corresponded with him.
I do not support many of his
ideas, and I certainly do not defend any act of plagiarism, libel, or
defamation. My conduct is nothing
like Winter’s. The Law section of
this Memorandum will clearly establish that any and all of my speech with regard
to this research is protected by the Copyright Act and the First Amendment of
the United States Constitution.
If anyone has broached the topic of the impossibility of
“owning” ideas and concepts, it is Tenen himself. In Gage’s article, she says that Tenen “...puts it this
way: Like each of the letters of
the alphabet, each culture has a vital contribution to make to the ecology and
survival of the planet. The model
found in the Hebrew text of Genesis is intrinsic to human consciousness like pi,
not owned by anybody.” (Emphasis added.)[i]
Therefore he is in agreement with Dan Winter on that issue.
Winter’s allegation that Tenen may be trying to “own” anything is
another matter altogether and irrelevant. In
one of Tenen’s own missives on an Internet message board forum, he states,
“Meru Foundation’s original work includes the rediscovery of sacred
geometries previously lost.” (Emphasis
added.) (See Exhibit 11.) Interestingly, in the same message, we see the pot calling
the kettle black. Tenen writes,
“In my personal opinion, Mr. Winter does not belong in any professional or
polite company. In all the years I
have been doing this work, and having met thousands of persons, I can state
unhesitatingly that, in my opinion, Mr. Winter is among the most incompetent and
is certainly the most cold-blooded person I have ever met.”
(Id.)
Tenen mistakenly believes that just because the Court
ordered Winter not to propagate ideas or research that could be connected to his
work, that precludes other folks from publishing similar research or commenting
upon it, including critical analysis. Tenen’s copyright applies to hand sculptures representing
his understanding of the Hebrew flame letters – not the Hebrew letters
themselves and their possible correlations with images of fire, flames, hands
and vortices. In fact, the Order
says his copyright pertains to a “philosophically meaningful three-dimensional
vortex sculpture of flame letters.”
(Emphasis added.) Copyright
law plainly states that only expressions of ideas may be owned – not
the ideas themselves. There is no
reference to Tenen in my book. However,
Christine Hall in her editorial applies this sentiment directly to the Winter/Tenen
controversy. While acknowledging
Winter’s use of Tenen’s graphic designs, she also states “...visualization
of Hebrew letters surrounded by flames is a concept that goes back to ancient
times and is nothing invented or discovered by Tenen.”
(See Exhibit 8.) In the present case, Tenen states, “...references to hands,
alphabets, and spirals, together, clearly refer back to our work and to some
degree the abstract you removed.” They
do not “clearly” refer back to their work in particular.
They refer to the work, ideas, and discoveries of many researchers in
this area and to the exploration of age-old spiritual practices.
Gage writes, “Tenen feels there are principles of law and
order in the relationship between humans and the cosmos that, up till now, only
Pythagoreans and Kabbalists have suspected.
What I’ve found, says Tenen, is that these principles correspond to the
numerical patterns of some of the basic geometrical forms found in the physical
world, for example, the double helix, which is the form of the DNA molecule.”[ii]
This is partially incorrect. These
“principles of law and order in the relationship between humans and the
cosmos” have been addressed by spiritual sages in many cultures throughout
millennia – not just the Greek
and Hebrew. That is partly what my
book is all about, and the fact that all epistemology regarding these cosmic
laws is extraterrestrial in origin. The
esoteric scholar, David Allen Hulse, has written an extensive two volume
compendium on this subject called The Key of It All:
An Encyclopedic Guide to the Sacred Languages and Magickal Systems of the
World, Book I devoted to the Eastern Mysteries, and Book II to the Western.
Each of these language systems includes an understanding of these
principles based on numerical patterns and geometry. In addition to the Hebrew and Greek mentioned by Tenen are
Cuneiform, Arabic, Sanskrit, Tibetan, Chinese, Coptic, Runes, Latin, Enochian,
English, and the Tarot.[iii]
Remember that in my book the research is discussed in the context of what
we know about DNA. Only briefly does Tenen relate his ideas to DNA in the Gate
article quoted above.
In the paper from which I originally quoted, Tenen states
“The vortex form is a suitable geometric metaphor for flame,
fire or “Light.””[iv]
(Emphasis added.) As I write in my book, it is more than a metaphor to
occultists – it is an actuality on several planes of existence, the discussion
of which, has been fundamental in all esoteric literature published throughout
the ages. In 1923 and 1924 Dion
Fortune wrote The Cosmic Doctrine explaining that all manifestation, not
just that limited to the physical plane, begins with tangential movements of
lines of force crossing one another, setting up opposing influences subsequently
interlocking and creating a vortex. In
discussing the interplay of vortices in relation to the organizing tendency of
the universe, she states,
For instance, supposing a prime movement of an atom
to be a three-sided tangential – A to B, B to C and C back to A, whatever
secondary movements may arise (and remember this, that movement in a straight
line is never so maintained after the original impulse dies away), conflicting
forces reduce it to a modification of the primal circular, so that the atom,
which in its movement originally pursued a triangular course, will finally
arrive at a movement consisting of three spirals arranged in a triangle.
Each spiral movement will be executed under the
conditions governing the A to B segment, then the B to C segment, then the C to
A segment. Therefore, if you knew
what the influences of the A to B segment were, you would know the nature of the
primary movement underlying the spiral which alone appears to the superficial
observer. This is a principle
underlying astrology, and this is the reason why the Science of Numbers plays an
important part in all practical applications of Cosmic principles.[v]
In her book, The Esoteric Philosophy of Love and
Marriage, she discusses the vortex in relation to the processes of birth and
conception:
When the act of sexual union takes place and the
subtle forces of the two natures rush together, and, as in the case of two
currents of water in collision, a whirlpool or vortex is set up; this vortex
extends up the planes as far as the mating of the corresponding bodies takes
place... It is by means of the
vortex of ingress that souls are enabled to pass down the planes and make
contact with a molecule of dense matter and so gain a foothold upon the plane of
manifestation, for it is with this vitalised molecule as a nucleus that the body
of dense matter is built up around them.[vi]
Vortices produce form.
Form is perceived as an extension or condensation of force on a denser
plane. That the great perennial
wisdom of the world has recognized this in relationship to the emergence of all
things – including alphabets – is “nothing new” as previously stated.
Barbara G. Walker in The Woman’s Dictionary of Symbols and Sacred
Objects writes,
The universe begins with roundness; so say the myths.
The great circle, the cosmic egg, the bubble, the spiral, the moon, the
zero, the wheel of time, the infinite womb:
such are the symbols that try to express a human sense of the wholeness
of things. Everything and everywhere
are circular in most pictographic and alphabetic systems.
Birth is roundness; the pregnant belly, the full breast.
Death brings life full circle: back
to the beginning again. Vessels are
round. The house is round,
containing all stages of life. The
temple is round, making wholeness visible.
The sacred dance is circular. (Emphasis
added.)[vii]
What are words but the vessels of
thought? What are alphabetical
symbols but the vessels of words? Letters
are to words as atoms are to things. Both
are birthed and begin with the spiral or vortex.
It was a goddess, not a god, that was usually credited with the invention
of alphabetical letters. Walker
continues,
All letters were originally sacred symbols – the
literal meaning of hieroglyph. In
Egypt the art of writing was the gift of the Goddess Isis, Maat, Menos, or
Seshat; in Rome, that of the Goddess Carmenta or the Fata Scribunda
(writer-Fate); in Scandinavia, that of the Norns as Schreiberinnen,
“writing-women”; in Babylon, that of the Gulses or Fates.
(Emphasis added.)
Written letters were symbols of the Logos power, that
is, the power to create the world by means of words.
That is why the fifty letters of the Sanskrit alphabet appeared on the
necklace of skulls worn by Kali Ma, perhaps the oldest Goddess of Creation.
These letters were matrika, “the mothers,” which brought all
things into being when kali formed them into words.[viii]
The first letter of many alphabets is especially associated
with the spiral or vortex form. The
Greek equivalent of A – Alpha – is also another name for the river Styx,
which represented the cycle of death and rebirth.
Walker writes, “Like the sacred spiral, the Styx was said to enter the
underground womb and reemerge after seven turns through the nether spheres.”[ix]
She reports that some of the older forms, such as Cretan, Syrian, and
Sinaitic scripts, the letter appeared “upside down” representing a cow or
bull. The Hebrew counterpart,
Aleph, means “ox.” The
southeastern Asian equivalent – Alpa Akshara – was the symbol for the mother
of all wisdom and the “spiritual birth-giver to all enlightened persons.”[x]
Another creation symbol is the double triangle – an
inverted equilateral triangle on top of an upright one.
(See Exhibit 12.) In the
Eastern mystery schools, it had tantric associations because it also represented
the coming together of the yin and yang forces – male and female.
Eventually it became the sign for infinity like the figure 8 and the
origin of the shape of the hourglass. The outline of the double triangle also
follows the directions of the legs on the Hebrew letter Aleph.
Viewed three-dimensionally, the double triangle also represents the
double vortex – the transition point between worlds.
Qabalists have made these associations for millennia.
The Hermetic Order of the Golden Dawn is a spiritual order that has roots
in ages past and that reached its peak in the 19th century.
Volume IV, Book Eight of the Golden Dawn’s magickal rituals contains an
illustration. (See Exhibit 13.)
The double triangle/double vortex represents the connection between two
worlds complete with Hebrew letters and Qabalistic associations. That Tenen was well aware of the significance and relevance
of this particular archetypal symbol is evidenced by his publication of a paper
entitled, “On the Double-Triangle” which is posted on the Internet.
(See Exhibit 14.)
When the double triangles unite, a hexagram is created, a
symbol that is also the emblem of Judaism known as the Star of David.
Yet the hexagram is a universal symbol with esoteric meaning all over the
world. Alchemically, it represents
the integration of the forces of fire and water.
In Yucatan, it symbolizes the sun shining on the Earth.
During Biblical times, it was the ultimate tantric symbol of the Eastern
mystery traditions representing the union between the Goddess Kali and Shiva,
her consort. Interestingly, Walker
relates,
The hexagram reached Judaism by a devious route,
passing through the Tantric influence on medieval Jewish cabalists, who spoke of
the desired reunion between God and his spouse, the Shekina (a Semitic version
of Kali-Shakti)... Hence the curious rabbinical tradition that the Ark of the
Covenant contained not only the tablets of the law but also “a man and woman
in intimate embrace, in the form of a hexagram.”[xi]
Speaking of the Shekina, in the Western mystery tradition
of esoteric Christianity, it is a triple flame in primary colors above an
amethyst base just behind the heart center or chakra – an energy center in the
etheric counterpart of the human body. When
I attended the Golden Pyramid, Unity – Church of Christianity in the 1970s,
the minister and one of my primary spiritual mentors, Dr. John Rankin,
instructed us often to visualize it as swirling, brilliant fire – another
version of the Hebrew letter Shin. Again
– these flaming Hebrew letters are an old concept indeed – “nothing
new.” We used the Holy Shekina in
a transmutation process that is described in my book in Chapter 3. Negative energy is pulled up from the abdominal brain or
solar plexus energy center/chakra – assigned to the Hebrew letter Kaph and the
Tarot Key, “The Wheel of Fortune.” The
energy is then purified in the Holy Shekina and then released for recycling into
the cosmos. Chakra means
“wheel” in Sanskrit. Chakras
are whirling vortices of energy, and have Hebrew letters assigned to them. The Wheel of Fortune is swirling and even inscribed with
Hebrew letters (See Exhibit 15.) The
Hebrew letter assigned to the Wheel of Fortune as a whole is Kaph, whose
hieroglyphic meaning is HAND. So
now we have all three components tied together succinctly --- hands, Hebrew
letters, and spinning vortices, establishing that there is a prior concept for
this art, contrary to Tenen’s claim.
For a more complete analysis regarding the Hebrew letters Kaph and Shin
and their Qabalistic correlations to the hand, the brain, and fire, see copy of
Meditations on those letters from the Book of Tokens by Paul Foster Case.
(Exhibit 16.) Paul Foster
Case is one of the primary founders of my spiritual order (which is an offshoot
of the Golden Dawn) and published those meditations in approximately 1934.
Another direct connection between Hebrew letters, hands,
and spinning spirals or “vortices” is illustrated by Tarot Key 21 known as
The World. (See Exhibit 17.)
A human figure is seen holding spirals in each hand,
dancing in a wreath. Wreaths are
leaves woven by hands, intimating that the raw forces of nature are
brought into useful form by human intervention.
The Hebrew letter Kaph (meaning hand) serves as a veil, covering the
figure’s reproductive organs. According to Case,
What is meant is that the mechanical appearance of
the laws of nature hides the truth that the universe is not a mechanism but an
organism. Hence, this veil covers
the reproductive organs of the dancer, and, according to an ancient tradition,
conceals the fact that the dancer is an Hermaphrodite.
Spirals in the hands of the dancer recall the words of the Chaldean
Oracles: “The god energizes a
spiral force.” This emphasizes a
fact always known to occultists and brought to light by exoteric science, viz.,
the form-building forces of the universe actually work in spirals.
Key 21, moreover, is associated with the letter Tav, and to this letter
is associated the planet Saturn, the astrological symbol of all that makes
things solid, definite and concrete. Saturn
is the form-giving power. All forms
whatever are manifestations of spiral activity. (@ 1934)[xii]
The Hebrew letter Yod also means hand.
In the meditation attached in Exhibit 16,
more correlations are made to fire and the circle of creation.
Yod is also the first letter in one of the divine names for God – Yod
Heh Vau Heh (יהוה), signifying again the first beginning
of things. It is thought to be the “hand of God” or Spirit guiding
the soul on its evolutionary way.[xiii]
Every Hebrew letter begins with a Yod, meaning that Yod is the foundation
for all the letters. If Yod is hand
then there is a hand in every Hebrew letter.
In the added excerpt in my book in question, I talk about
the correlation between the five-pointed star, also known as a pentagram, and
hands as having five fingers. Exhibit
18 is a pentagram with the alchemical symbols for the four elements and the
quintessence. In the Golden Dawn
rituals, each finger of the hand is attributed to one of these:
thumb – spirit or quintessence, third finger – fire, index finger –
water, little finger – air, and second finger – earth.[xiv]
(Esoteric Buddhism also attributes the same principles known as
“tattvas” to the fingers of the hand.)[xv]
What is also on this pentagram are the five corresponding Hebrew letters
spelling the divine name Yeheshua (יהשוה).
Yeheshua is a significant modification of the divine name for God
-- Yod Heh Vau Heh with an added Shin in the middle transforming it into
the equivalent of the Christ. Inserting
the fiery Shin into the divine name for God thus illuminates the Pentagram –
symbol for the human being. This illumination is what is known as Christ
consciousness. This name is
powerfully invoked in the Golden Dawn’s “Formulae of the Magic of Light”
ritual. When doing the
transmutation technique discussed in my book, pentagram position is often
employed – standing straight with arms and legs outstretched to resemble a
star. In ceremonial ritual, pentagrams are visualized as blazing
symbols, Hebrew letters and all. Many
of these rites are centuries old, if not millennia. Illustrations of other magickal sigils often visualized as if
on fire are attached as Exhibit 19. Among
these are a pentagram, the double triangle vortex figure mentioned above, and
images of hands directly in conjunction with Hebrew letters.
These particular sigils are taken from The Key of Solomon the King,
which was translated and edited over 100 years ago from the original manuscripts
in the British Museum by S. Liddel MacGregor Mathers, who was instrumental in
founding the Hermetic Order of the Golden Dawn.
Hebrew letters are inscribed all over these sigils.
That they are also to be visualized as “flaming letters” and
“whirling” at that, can be found in specific instructions from the
organization. In one Golden Dawn
invocation in particular:
Go to the South of the Altar, and face the North.
Draw the Hebrew letters of Adonai Ha-Aretz in the Air before you.
Also the Sigil. Then imagine
both in the heart. Vibrate the name
several times by the Vibratory Formula of the Middle Pillar until the whole body
throbs and pulses with the divine power... Trace the Earth Pentagram and in it the Sigil and Hebrew
letters of Auriel. Picture the Name
in the lungs, and vibrate it several times by the vibratory formula, circulating
the force thereafter.[xvi]
In all esoteric spiritual orders of the Western tradition
that took some of their inspiration from the Golden Dawn, variations of these
rituals abound. For instance, it is
common to visualize the physical body placed inside the entire Qabalistic Tree
of Life. The central sephirah
(sphere) called Tiphareth is the Christ center located at the heart.
While in the Tree, the practitioner may visualize a specific Tarot key,
color, and/or Hebrew letter attributed to the path on the Tree where the work is
being done. These images are often
manipulated and are made to shape-shift into other forms depending on the
purpose of the ritual. Whirling Hebrew letters are often visualized shape-shifting
into other forms including hands. In
fact, the Golden Dawn formulated specific mudras that incorporated the
attribution of Hebrew letters to the fingers of the hand, in particular, the
Tetragrammaton.[xvii]
Chinese cosmology also shares a similar system of trigrams related to
sacred hand positions.[xviii]
In the following excerpt directly out of one of the Golden
Dawn’s prescribed rituals, take particular note of the Qabalistic references
to the spheres on the Tree of Life and the telesmatic attributions of the Hebrew
letters:
In the vibration of Names concentrate first upon the
highest aspirations and upon the whiteness of Kether. Astral vibrations and material alone are dangerous.
Concentrate upon your Tiphareth, the centre about the heart, and draw
down into it the White Rays from above. Formulate
the letters in White Light in your heart. Inspire
deeply, and then pronounce the Letters of the Name, vibrating each through your
whole system – as if setting into vibration the Air before you, and as if that
vibration spread out into space. The
Whiteness should be brilliant. The
Sigils are drawn from the lettering of the Rose upon the Cross, and these are in
Tiphareth, which corresponds to the heart.
Draw them as if the Rose were in your heart.
In vibrating any Name, pronounce it as many times as it has letters.
This is the Invoking Whirl. Example:
The Vibration of Adonai Ha-Aretz. Perform
the banishing Ceremony of the Pentagram in the four quarters of your room,
preceded by the Qabalistic Cross. Then
in each quarter perform the Signs of the Adeptus Minor, saying IAO and LVX,
making the symbol of the Rose-Cross... Pass
to the centre of the Room, and face East. Then
formulate before you in brilliant white flashings of the Letters of the name in
a Cross – i.e., both perpendicularly and horizontally as a picture before you
extrinsically... (See Exhibit 20.)[xix]
In Golden Dawn ritual, the image of the Double Triangle
representing transmission between the worlds as a vortex is visualized, complete
with the corresponding Hebrew letters and flashing colors:
Were Malkuth and Kether in the same plane or world
the transmission of these forces from the one unto the other would proceed more
or less in direct lines. In
this case, seeing that Malkuth and Kether be in different planes or worlds,
the lines of transmission of these forces are caught up and whirled about by the
upper cone of the hourglass symbol into the vortex where
through passeth the thread of the unformulated, i.e., the Ain Soph.
Thence they are projected in a whirling convolution (yet according to
their nature) through the lower cone of the hourglass symbol unto Kether.[xx]
(See Exhibit 13.)
Pentagrams are typically visualized as “glowing figures
of fire”[xxi]
and that includes the Hebrew letters inscribed on them.
Eliphas Levi, noted occultist of the 19th century in 1896
wrote in his classic treatise, Transcendental Magic:
“But the Pentagram, profaned by men, burns ever unclouded in the right
hand of the Word of Truth, and the inspired voice guarantees to him that
overcometh the possession of the Morning Star...
the Magus turns his eyes toward this symbol, takes it in his right hand
and feels armed with intellectual omnipotence...”[xxii]
Another 19th century Golden Dawn luminary, Aleister Crowley,
liked to work with the Hebrew letters assigned to each path on the Tree in
“Flaming Sword” imagery. The downward involution of the Tree is often represented as a
“lightening flash” or “flaming sword.”[xxiii]
(See Exhibit 21.)
The mysterious Enochian language system is partly comprised
of tablets or “watchtowers”
which incorporate spiraling configurations of letters used in the invocation of
greater powers.[xxiv]
The sephirahs on the Qabalistic Tree, though usually imaged
as spheres, can also be seen as concentric circles that spiral into and
interpenetrate one another. (See
Exhibit 22.) The spiral as a
deeper concept also refers to the First Swirlings or “beginning of whirlings”
of Qabalistic philosophy preceding Kether, the first sphere.
This also forms the basis for the Hermetic Axiom:
As Below, So Above. (See
Exhibit 23.) That brings us to the connection with DNA.
As previously mentioned and explored more thoroughly in my book, the
chakras (whirling energy vortices) aligned to the human spine allow the fiery
kundalini energy to activate consciousness.
Walker notes, “The Kundalini energy was supposed to coil around the
merudanda in a double spiral, one solar (rightward) and the other lunar
(leftward). These were known as
Pingala and Ida. The resulting
design was remarkably like the Hermetic caduceus with its twin serpents twining
around a central staff – or the double helix of DNA.”[xxv]
Some practitioners believe that the chakras are the energy vortices at
the subatomic level and the equivalent of spiritual DNA.[xxvi]
Yet some researchers are beginning to think that physical DNA itself
could be the doorway to higher realms or dimensions.
They use vortex theory to explain this.
In the 19th century, Lord Kelvin felt that atoms
were vortex rings that gave rise to the illusion of matter.
Other celebrated scientists of the period like Helmholtz, Maxwell, and
Sir Thomson concurred. But when science discovered subatomic particles, this theory
was abandoned. British scientists
David Ash and Peter Hewitt in their book, The Vortex:
Key to Future Science, renew this concept by stating that the vortex
of energy is found in the elementary particle.
The velocity of the vortex movement of energy can exceed the speed of
light. When this happens, the
particle enters a higher plane, dimension or “super-physical” reality.
When the vortex is slowed, it reappears.
This process, called transubstantiation, has been used to explain the
possibility of interdimensional travel by UFOs, and is just another example of
emerging scientific theory verifying Ageless Wisdom.
Resonance, which is discussed at length in Chapter 8 of my
book, explains how the physical realm interacts with these “super-physical”
realms. One scientist explains,
“The DNA in the cells of living organisms acts as a receiver of
information from the super-physical realm.
DNA molecules have a double helix structure coiled repeatedly upon
itself, thus forming a coil reminiscent of that in a radio set.
Just like a radio coil can pick up radio waves which the rest of the
tuning device of the radio transforms into sound, the DNA picks up
super-physical information and relays this to the cell...
This information governs the development of the cell...”[xxvii]
This is how changes are initially detected in the energy field prior to
manifestation in the physical body. Remember
that concentric circles and spheres are often 2-3 dimensional representations of
vortices. (See Exhibit 24.) This diagram comes from a paper by Dr. Noel Huntley who
explains that DNA is the interface vortex between the third and fourth
dimensions. Huntley says that a
fourth dimensional spherical vortex spiraling inward can be mathematically
modeled as countless concentric spheres.[xxviii]
Shaping of organisms results from the magnitude of the radius of the
spheres and the degree of intersection or phase relation of oscillations.
In his words:
The precise placement of any point within the primary
vortex, such as in the positioning of a cell, is achieved by programming the
phase relationship of the ‘spheres’ which in the periphery of the vortex is
accomplished by adjustment of the phase angles of the ‘sine’ waves, which
precipitate into the centre forming the intersecting ‘spheres’ or vortices.
According to this phase relationship and the magnitude of the final
standing wave (an inner-vortex periphery -
the outer vortex spirals inward and will be automatically biased one way
or the other spatially, homing in perfectly to a specific location...
This would be expected to be roughly how extraterrestrials navigate to a
coordinate point during teleportation, and also how, for example, a pianist
instantly locates, when desired, a point of information in, say, part of a
finger movement during whole complex coordinations. In reality we have two conditions: (1) the DNA which we know contains information for the
regulation and maintenance of the organism, and (2) a higher-dimensional
formative blueprint or spiritual ‘seed’ which contains potentially
infinitely greater probable information in the modulations of its sine waves in
its 4D periphery. Since the
formative blueprint and the 3D or chemical DNA are intrinsically connected one
might say that this blueprint is inside the DNA.
The DNA thus provides the 3D control, and by sending its resonances up
through the gradient spiral of the vortex, meeting at every level the basic
program of higher-dimensional information, selection of probabilities takes
place.[xxix]
This is not New Age fringe science.
The following abstract on a paper entitled “Vortex Pluralism:
A New Philosophical Perspective” was published by the Pacific
Neuropsychiatric Institute. The
paper is written by Vernon M. Neppe, M.D., Ph.D., FRCPC, the director of the
Institute and professor of psychiatry at St. Louis University in Missouri.
It proposes,
... a radical, new mind-body theory involving
perceiving the mind and body link dilemma as neither being dualistic or
monistic. Instead, mind and body
reflect part of a grander pluralistic design, with a gradual process of
diminishing density in infinite dimensional vortices impacting at specific
points which are partly observed dependent interwoven with a broader existence.
Simplistically, the model of a spinning top allows the subject to
experience the vortices at specific defined points in an N dimensional
space-time universe allowing meeting points for such phenomena as precognition,
survival after bodily death, and mind-brain.
This theory appears tenable using natural scientific models ranging from
psychology and the unconscious to genetics, quantum physics and relativity,
astronomy, chemistry, anthropology, religion, philosophy, sociology, biology,
physiology and anatomy. Theories
pertaining to numerous concepts and ideas such as overlaps, parallel universe
and holograms; nanosecond biology, molecular interaction, circular motion and
crystal structure; vibrations, density and frequency; spatial gaps,
observer-observed, minuscule-macropedic differences, parallel and non-parallel
vortices; are all workable within the vortex pluralism framework.
The external unconsciousness model, temporal lobe, helices, electrical
wiring and nerves, paranormality, survival communication, meditation, death,
free-will, psychokinesis, out-of-body experience and extrasensory perception are
all impacted within this all encompassing fundamental theory.[xxx]
Therefore, if DNA, like a radio, is a transceiver for ideas
originating on higher planes, then communication methodology is intrinsically
encoded. Linguist/Archeologist/Author
Zecharia Sitchin claims that our genes are our “cosmic connection.”[xxxi]
Cuneiform tablets from Mesopotamia translated by him explain that the
“seed of life,” otherwise known as the genetic alphabet, was imparted to
Earth from Nibiru by our extraterrestrial ancestors over four billion years ago.
He theorizes that all early mystical or “sacred” alphabets, including
Hebrew, derive from the genetic code. For
instance, DNA is decoded by messenger RNA that transcribes and rearranges the
DNA letters (CGTA) into three-letter words.
He states:
The rich and precise Hebrew language is based on
“root” words from which verbs, nouns, adverbs, adjectives, pronouns, tenses,
conjugations and all other grammatical variants derive.
For reasons that no one has been able to explain, these root words are
made up of three letters. This
is quite a departure from the Akkadian, the mother-language of all Semitic
languages, which was formed from syllables – sometimes just one, sometimes two
or three or more.
Could the reason for the three-letter Hebrew root
words be the three letter DNA-language – the very source, as we have
concluded, of the alphabet itself? If
so, then the three letter root words corroborate this conclusion.
“Death and life are in the language,” the Bible
states in Proverbs (18:21). This
statement has been treated allegorically. It
is time, perhaps, to take it literally; the language of the Hebrew Bible and
the DNA genetic code of life (and death) are but two sides of the same coin.
The mysteries that are encoded therein are vaster
than one can imagine; they include among other wondrous discoveries the secrets
of healing.[xxxii]
I summarize Dr. Strassman’s findings from his
experimental studies with DMT in the same chapter of the book containing the
excerpts in question. Many of Dr.
Strassman’s subjects described experiences filled with vibrating colorful
imagery involving the “spiritual” component of DNA.
They often saw the spirals transforming into images resembling geometric
shapes and alphabetical figures.[xxxiii]
It is clear that Tenen is not the first to “rediscover” these
correlations.
Finally, Tenen forewarns, “... if you were to take your
book to another publisher rather than making the effort to understand the
Court’s findings and do the right thing, the Court would simply take this as
confirmation of your knowing and willful responsibility.”
I have no need to take my book elsewhere because these allegations are
totally unfounded. But even if I chose to take my book elsewhere, there could be
a multitude of reasons for doing that, e.g., better royalties, better service,
more control over distribution, etc. Such
action would not be an admission of anything except for my desire to do so.
Hall in her editorial encourages folks to view the website
showcasing Winter’s work that is still published on the Internet from
overseas. Tenen has not yet
attempted to censor her. Hall’s
article has been around for a long time and is published in other journals as
well. If Tenen was genuinely
concerned with preserving the integrity of his work and his reputation in the
manner he claims, why hasn’t he confronted her and others publishing similar
material? The fact that these ideas
remain published online at many websites fortifies their presence in public
domain. Therefore, Tenen is
estopped from legally claiming otherwise.
The Tenens feel that my actions are causing them
“professional and legal damage.” Given
the cumulative effect of their mischaracterization of this whole situation and
their misrepresentation of the facts, that is a burden they simply cannot
lawfully make or bear. They chose
to make a problem where there was none. Any
litigation initiated on their behalf would be deemed frivolous prosecution, and
indeed there are penalties for that.
IV.
THE LAW
This section includes an analysis of the law as it pertains
to the original lawsuit, Tenen v. Winter, the allegations currently being
made against me and anyone else in similar context, the tension between First
Amendment rights and intellectual property interests, and the just resolution of
this matter.
A. What Really
Happened in Tenen v. Winter
Tenen sent me a copy of the “Findings of Fact,
Conclusions of Law, and Order” signed by Judge Charles J. Siragusa of the
United States District Court, Western District of New York at Rochester, on
September 9, 1998 in the case Stanley N. Tenen, et al. v. Daniel
Winter, et al., 15 F.Supp.2d 270 (1998).
He also sent me one page of excerpted testimony from the deposition of
Richard Leviton, and an Affidavit signed by James J. Hurtak, both witnesses on
their behalf in this lawsuit. This
Order which in effect was an injunction and judgment, was stipulated – meaning
that it was agreed upon and signed by plaintiffs and defendant.
This document was prepared and submitted to the Court three months after
the main business of the Court was concluded.
Therefore, it was not included in the publication of the authoritative
records of all District Court cases called The Federal Supplement (F.Supp.
for short.) When attorneys
or anyone looks up this case in the records in order to cite it as law, they
will not find this detailed document, which is good, because it is severely
flawed. Nonetheless, although this
Order was not directly made by the Judge as a finder of fact absent a jury, it
is still an Order with the same effect as any other kind of order.
In reality, the language of the Order was constructed by attorneys for
plaintiffs Tenen. Once signed by
defendant Winter, it was submitted to the Judge for his signature.
It appears that the Judge made a serious oversight or abused his
discretion in allowing certain language to remain in the injunction because it
is blatantly unconstitutional. Before
I explain how and why, we must first examine what really occurred in the
courtroom leading up to the conclusion of this case – and what subsequently
was published as the law for future reference and citation.
The published headnotes for this case summarize it as
follows:
In copyright infringement action, copyright holder
filed several motions. The District
Court, Siragusa, J., held that (1) Rule 37 sanctions were appropriate where
alleged copyright infringer failed to provide discovery concerning
interrogatories he was court ordered to answer on the subject of his allegation
that copyright holder had made defamatory statements; (2) court would not grant
plaintiffs’ motion for change of venue; (3) copyright holders were not
entitled to preliminary injunction; and (4) judgment was entered against alleged
infringer for amount of unpaid previously awarded costs.
Judgment as ordered.
It is not clear in the published case whether or not Winter
actually plagiarized Tenen’s materials as alleged. What is clear, based on the published facts and orders, is
this:
1. Winter filed a
counterclaim alleging defamation against him by the Tenens.
As is standard protocol in all litigation, the parties have a right to
file “discovery” pleadings in an attempt to arrive at certain facts at
issue. Tenen submitted
interrogatories (questions) to Winter, to which he never responded.
Court procedure allows sanctions against those who do not comply with
discovery requests. Tenen wanted
the Court to find Winter in contempt, meaning Winter would have probably had to
pay a fine or spend time in jail. The
Judge instead opted to dismiss Winter’s counterclaim, thereby denying him the
opportunity to present evidence at trial in support of his defamation claim
against Tenen. The law requires
full disclosure of all witnesses and documents to be used at trial before
trial. All parties have the right
to review these and respond to them beforehand in an order to adequately prepare
for trial. Tenen objected to this
ruling, arguing that it did not afford them the opportunity to address the issue
of damages. Therefore the Court
ordered that Winter supply certain documents to a third party referee for
determining what damages, if any, were due Tenen.
2. Tenen wanted to postpone
the trial date, originally scheduled for July 27, 1998, by moving for a change
of venue, probably due to lack of readiness and a proper expert witness. The Court denied this motion.
3. Tenen, more than once,
asked the Court for a “preliminary injunction” which would have prevented
Winter from publishing, promoting, or distributing certain materials that Tenen
believed Winter plagiarized. Another
Judge/Magistrate had jurisdiction over this case before it was assigned to Judge
Siragusa. The Magistrate already
denied Tenen’s previous request for an injunction based on lack of sufficient
evidence likely to prove that Tenen’s copyright was violated.
When the case arrived at Judge Siragusa’s Court, a similar decision was
made. Judge Siragusa ruled
accordingly:
This court agrees with Magistrate Judge Scott’s
assessment of the case at this stage: “plaintiffs
have not established that the ideas upon which the defendants’ work are based
are subject to copyright protection, or to the extent the plaintiffs have a
copyright, that such copyright has been infringed by the defendants’ work.”
Clearly the factual issue pertaining to the ability of defendants to
create the shape he claims he has through mathematical means will require expert
testimony to establish and to refute. In
view of this court’s order to the defendants to keep more accurate records of
sales, it appears that damages will suffice to remedy any breach of copyright
found after trial. The
plaintiffs’ request for a preliminary injunction is denied.
This is extremely important for reasons soon stated.
4. Against a formal Report
and Recommendation, Judge Siragusa ordered Winter to pay costs in the amount of
$1,928.82 for his disobedience to the Court.
5. Final orders reiterated
that in the event a future showing of business records provided sufficient
evidence in support of plaintiffs’ request for an injunction, it would be
reconsidered, but stands denied as of the final ruling.
The case never went to trial. Usually the jury is the fact finder in litigation except in
matters where judgment can be made as a matter of law, meaning that no
substantial issues of material fact are disputed. In that event, a party files a motion for summary judgment or
a motion for a directed verdict. If
the judge finds that no issues of material fact are in dispute, a ruling will be
made as a matter of law without the case proceeding to trial.
That did not happen in this case, even though there were many material
facts in dispute What happened was a stipulated settlement between the parties
that was subsequently entered into the Court records as a final “Finding of
Facts, Conclusion of Law, and Order.” This
document is so skewed and flawed, it is a wonder the Judge let it through.
The only logical reason had to be because the parties agreed to its
terms, and it appears that was the case, as the document is signed by Tenen and
Winter. The Judge was probably
relieved to see this case end because it involved complex issues regarding
intellectual property that had not yet been adequately resolved, and issues with
a problematic defendant who at this point was representing himself – Dan
Winter. Judges typically do
not write judgments and orders. Attorneys,
usually for the prevailing party, do this and then submit it to the Judge for
signature. It is routine for Judges to assign the task of reviewing Judgments
and Orders to law clerks. An
inexperienced law clerk probably read it and advised the Judge to sign it.
Subsequently, it was entered into the unpublished record as a
matter of law without careful review. How
Winter came to sign this document is not entirely clear.
Speculation on the Internet is that he was very ill, under extreme
duress, and just wanted to settle the case in order to get rid of it and move on
with his life.
Winter, by signing this Stipulated Order agreed that he
plagiarized Tenen’s works. As
a result, he was required to publish the Order along with a “Corrective
Notice” on the Internet for public clarification.
He also agreed to surrender all rights to his website, www.danwinter.com,
to Tenen. He also agreed to
specific orders protecting Tenen from future copyright infringement.
As is standard, the Order lists specific documents that Winter was
refrained from distributing or claiming as his own.
The Order then lists by number particular actions that Winter cannot do.
The Order states that Dan Winter “as well as each of his employees and
agents, whether he does business as Daniel Winter and Friends or Crystal Hill
Farm or San Graal School or under any other name, and each person in privity
with him, if any, is permanently enjoined from engaging in any of the following
activities...”
[item 6.]
making or publishing any oral or written disparaging or unsubstantiated
statement, or any statement inconsistent with these findings of fact, to any
person or entity about the quality, originality, competence, motives or
religious status of the plaintiffs or about their published or unpublished
works.
This is the problem paragraph which Tenen is attempting to
leverage on his behalf, giving him unprecedented and illegal authority to
control anything and everything that anyone has to say about him, his work, or
research remotely related to any and all aspects of his work.
It appears that Dan Winter had neither understanding nor
respect for the law and the judicial process.
As a result, he was unable to appreciate the consequences of his actions
arising out of that lack of understanding and respect.
For example, in the Order he agreed to a statement that he considered all
copyrights to be “childish” and that all information should be “shared.”
Given these facts and that attitude, it is easy to imagine how frustrated
the Court and the plaintiffs were. In
the initial stages of the litigation, it is my understanding that Winter had
legal counsel. However, when
counsel learned that Winter could not afford the $50,000 retainer for trial he
withdrew. This left Winter with no
legal representation at all. Therefore,
he had to proceed pro per – on his own behalf. Winter’s genius is legendary, according to what is
published on the Internet. Unfortunately,
he chose not to apply that genius and his analytical skills to the law in
representing himself. I believe
that if he would have, this profoundly flawed and unconstitutional Order would
never have come to be.
B.
The Injunction is Void Because It Is a Prior Restraint and Does Not
Comply with Fed.R.Civ.P. 65(d) or U.S.C.A. Const. Amend. 1.
Federal Rules of Civil Procedure, Rule 65(d) governs the
scope of an injunction issued by a federal court. It states that an injunction “is binding only upon the
parties to the action, their officers, agents, servants, employees, and
attorneys, and upon those persons in active concert or participation with them
who receive actual notice of the order by personal service or otherwise.”
This rule is derived from common law doctrine, defining “those persons
in active concert or participation” as persons identified with the defendant
“in interest, in ‘privity’ with them, represented by them or subject to
their control.” Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14 (1945).
In order to determine this, the court must look to the actual
relationship between the person enjoined and the person alleged to be bound
by the injunction at the actual time of the injunction.
Id. No such relationship existed between myself and Dan Winter.
I have never met him. I
have never spoken or corresponded with him.
We may share similar interests and ideas, yet on the other hand, I
disagree with some of his views. The
same thing could be said of me and President Bush.
Either way, that’s not enough to establish actual relationship
at the time of injunction. Therefore,
the injunction does not apply to me for this and other reasons.
Overbroad injunctions offend the principles of due process.
United States Steel Corp. v. United Mine Workers of Am., 519 F.2d
1236, 1246 (5th Cir. 1975). This
is partly attributed to the fact that violation of such an injunction resulting
in a contempt proceeding is a summary process lacking the protection of a jury
trial. Nabkey v. Hoffius,
827 F.Supp. 450, 452 (W.D. Mich. 1993).
The United States Supreme Court recognizes that this is particularly
important in matters involving freedom of expression because injunctions
“carry greater risks of censorship and discriminatory applications than do
general ordinances.” Madsen v.
Women’s Health Center, 512
U.S. 753, 765, 114 S.Ct. 2516, 129 L.Ed. 593 (1994).
In addition, Justice Souter in Madsen emphasized
that trial judges determining whether someone is acting “in concert” must
scrutinize the individual case on its own merits, and not decide based solely
upon the viewpoints of the movant. Such
determinations can only be decided on a case-by-case basis after sufficient
evidence has been presented to the Court in an appropriate hearing.
In another First Amendment case, the Supreme Court held that even “the likelihood
that a film will later be judged obscene is insufficient to justify even a
preliminary injunction.” Vance
v. Universal Amusement Co., 455 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413
(1980)(Emphasis added.) Particular
expression cannot be forbidden without also running a substantial risk of
suppressing ideas in the process. Cohen
v. California, 403 U.S. 15 (1971). Preliminary
injunctions must also be immediately appealable for adequate due process.
Freedman v. Maryland, 380 U.S. 51, 59, (1965).
Noted legal scholar, Laurence H. Tribe, states that “[a]lthough the
First Amendment is not an absolute bar to prior restraints, the Supreme Court
has repeatedly said that any ‘system of prior restraints comes to this Court
bearing a heavy presumption against its constitutional validity.’”
Laurence H. Tribe, American Constitutional Law (2d ed. 1988) §
12-34 at 1041; see also Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct.
625, 631, 75 L.Ed. 1357 (1931), firmly establishing that a court cannot, in
advance, prohibit free speech. Bottom
line is that an injunction entered many years ago cannot be binding upon me when
I had no right or ability to defend myself in the first place.
Even in the unlikely event that a complicit relationship
could be established between Winter and anyone at the time of the injunction,
the language in paragraph 6 of the Judge’s Order is so vague and nonspecific
that it begs for constitutional scrutiny and appeal. It appears that Tenen and his lawyers deliberately
constructed it that way in an attempt to give Tenen unprecedented editorial
authority over anyone and anything said regarding him, his work, or similar
research. However, as Judge Learned
Hand emphasizes, “No court can make a decree which will bind any one but a
party; a court of equity is as much so limited as a court of law; it cannot
lawfully enjoin the world at large, no matter how broadly it words its decree.
If it assumes to do so, the decree is pro tanto brutum fulmen, and
the persons enjoined are free to ignore it.”
Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 832033 (2d Cir. 1930).
Indefinite language such as “all persons associated or affiliated with
him” or “in any way identifying themselves with” is traditionally deemed
too vague and unenforceable to satisfy the standards of First Amendment due
process. All prevailing legal
authority emphatically reiterates that “Constitutionally permissible
restrictions on First Amendment rights must be drawn with narrow specificity.”
U.S.C.A. Const. Amend. 1. Court
orders regarding First Amendment issues are typically subject to a higher
standard of specificity and precision. Goguen
v. Smith, 471 F.2d 88, 105 (1st Cir. 1972),
CPC International v. Skippy, 2000WL 710147 (4th Cir.
2000). In Skippy the court vacated a trademark injunction
because it lacked such specificity and was overly broad. All injunctions regarding free speech issues must be tested
against this vagueness doctrine. U.S.
v. Patco, 678 F.2d 1, 3 (1st Cir. 1982).
The effect of such vagueness is to suppress valid, free and protected
speech, intended or not, especially for third parties who are unsure as to
whether such injunction applies to them. If
third parties are unable to determine if they are bound by the Order, they must
refrain from speaking or risk contempt. This
directly violates all principles of due process and has a chilling effect on
everyone’s right to free speech.
This inappropriate language appears in the most vital
directive of Tenen’s Order. It
particularly seeks to enjoin Winter and all those “acting in concert” with
him from “making or publishing any oral or written disparaging or
unsubstantiated statement, or any statement inconsistent with these findings of
fact, to any person or entity about the quality, originality, competence,
motives or religious status of the plaintiffs or about their published or
unpublished works.” Such language
is guaranteed to be stricken if this Order comes under second scrutiny or appeal
because it clearly violates the standards of both copyright law and the First
Amendment.
For one, the terms “disparaging” and
“unsubstantiated” are indefinite. If
a person knowingly published a false damaging statement with actual malice
regarding Tenen or his work, Tenen could pursue a claim of libel against such
person pursuant to state law. An
additional injunction under federal law is superfluous, overbroad, and
overreaching. It may even be in
conflict with the negligence standard adopted in most states.
In order to prove libel, it must be shown that the libelous statement was
written with actual malice or a reckless disregard for the truth.
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
Furthermore, the court clearly defines “actual malice” as subjective
knowledge on the part of the perpetrator that the statement is probably false.
St. Amant v. Thompson, 390 U.S. 727 (1968).
Opinions – disparaging or not – are not considered defamatory if they
fall under the privilege of “fair comment” or “public concern.”
Most of the criticism and commentary published online regarding Tenen,
his work, and the controversy between him and Winter is protected by this
privilege. The research is a matter
of public concern because it involves important data that may potentially impact
the growth of scientific knowledge. In
the event of actual libel, courts ordinarily ban preliminary injunctions –
particularly those brought by private citizens because of the complexi |