The “Blue Monk” of this column’s title refers not to a memorably quirky 12-bar blues in B-flat by Thelonious Monk, but instead to His Eminence, Archbishop Gregory (George), leader of the Genuine Orthodox Church of America and founder of the Dormition Skete monastery in Denver, Colo. The archbishop recently found himself on the losing end of a complex copyright infringement case in the U.S. Court of Appeals for the First Circuit, Society of the Holy Transfiguration Monastery v. Archbishop Gregory of Denver,1 which revisits the treacherous four-way intersection where religious doctrine and organizational infighting meet copyright law and the Internet.
As in the Second Circuit’s 2002 ruling in Merkos L’Inyonei Chinuch v. Otsar Sifrei Lubavitch,2 the dispute concerned contemporary English translations of sacred ancient texts, copied and distributed by a rival religious group, and as in Merkos, the translations were ultimately held to be protectable, owned by the plaintiff, and infringed by the defendant. Unlike the defendant in Merkos, however, Archbishop Gregory raised some high-tech defenses to the claimed infringements, including a Digital Millennium Copyright Act (DMCA) “safe harbor” argument and a claim that he did not commit a “volitional act” in placing the infringing works on the web. He also alleged fair use and copyright misuse, and claimed that the plaintiffs’ copyrights were void because the original works had been published without notice.
