BUFORD A. UPHAM
1910 - 1996

WHEELER UPHAM
A PROFESSIONAL CORPORATION

SECOND FLOOR, TRUST BUILDING

TELEPHONE (616) 459-7100

FAX (616) 459-6366

40 PEARL STREET, NW GRAND RAPIDS, MICHIGAN 49503

ESTABLISHED 1883

Dear Mr. Larsen:

I am writing in response to your January 12, 2004 e-mail to me wherein you indicated that you were in the process of updating your website concerning Team of Destiny^® . You indicated that, you believed, you had removed all material that might constitute a copyright infringement. You also indicated that I should review your site to see if there is anything else that I believed constituted a copyright infringement, and if so, to deliver that information to you so that you could remove it from your site. Accordingly, I am writing in response to your invitation and to inform you that, in fact, I believe your website still violates copyright and other laws in numerous respects. I have set forth below my clients' demands to head off litigation.

First, it appears that you attended a TOD open meeting in December 2003 and surreptitiously tape recorded that meeting. That meeting is protected by copyright laws and the tape recording of the meeting violates the Federal Anti-Wiretapping Statute. Accordingly, you must immediately remove from your website the portion concerning the "critique of a TOD open meeting" and the audio portion that accompanies it.

Second, the eight tapes that you mention on page three of your website violate copyright law. All of the tapes mentioned are copyright protected and any rebroadcast of them is prohibited, even if it is simply you providing a thumbnail of what the copyright protected tape actually states. Accordingly, you must remove each of these references on page 3.

Next, you must remove the reference at the bottom of page 3 and top of page 4 from a TOD seminar on November 9, 2002. In addition, you must remove the quote from the TOD copyright protected website contained at the top of page 4 of your website.

Next, on page 4, you must remove the reference to TOD tape PPS-18 concerning Don Freeze's statements.

Next, on page 5 of your website, you reference 6 TOD tapes. Each of these tapes are protected by copyright and your comments concerning content contained in those tapes must be deleted.

Next, you must delete the images and charts contained on pages 6 and 7 of your website. Please note that the images and charts utilized by you are not taken from Orrin Woodward's unprotected website, as you state. In fact, Orrin Woodward's website contains a conspicuous warning that it is protected by copyright. Accordingly, the image and chart on pages 6 and 7 must be removed.

Next, the bottom of page 8 of your website contains an audio portion from Orrin Woodward and a reference to a copyright protected tape by Don Freeze. Both of these portions must be removed from the website.

Next, at the top of page 9 of your website, there are three references to TOD tapes that are protected by copyright. The portions concerning Bill Lewis, Orrin Woodward, and Chris Brady speaking in a copyright protected tape must be removed from your website.

Removal of all of the above-mentioned portions of your website would satisfy my client concerning copyright violations contained in your website. In addition, Orrin Woodward would like the information concerning his mortgage amount and address removed from your website.

Last, my clients would like all specific references to Team of Destiny^® , Orrin Woodward, Chris Brady, or any other member of TOD removed from your website. Instead, they request that the website be made non-TOD specific and, instead, simply refer to groups within Quixtar in a general sense.

I and my clients will continue to monitor your website and I look forward to acknowledgment, either directly from you or through the monitoring of your website, that the requests set forth herein have been honored by you. Thank you in advance for your anticipated cooperation in an attempt to avoid litigation.

  Very truly yours,

WHEELER UPHAM, P.C.

/s/

By

Thomas A. Kuiper

Dear Mr. Kuiper, January 19,2004

Thank you for the letter of January 14th, 2004.

Unless congress has recently repealed the "Fair Use" section of the Copyright law, your claims of copyright infringement are overzealously asserted.

Let me refresh your memory about the "Fair Use" provision of the copyright law and the four elements that comprise that exception:

1). I am criticizing your client's business support materials. The contents of these materials support my pyramiding accusations. The use of the material on my site is non-commercial. Since the intent is "criticism" and non-commercial in nature, the first test is met.

2) The content of the materials is the very thing I am criticizing. Specifically, as detailed on my site, the statements I have used from TOD's materials are evidence of that TOD promotes a multi-level marketing business in which most of the products (including BSMs and the Quixtar products) are sold to the distributors for their own consumption rather than for ultimate sale to non-distributors as is required by the FTC and Quixtar's own retail sales rules. The second test is met.

3) In my criticism of your client's business and business support materials, the audio excerpts chosen usually represent only 1-2% of the total work. In the case of the text references I make on my site, the fraction is much less. Since the portions I use are only fractional excerpts for criticism, the third test is met.

4) Since these are fractional audio and text excerpts and that I am not selling full-length copies of the materials, the market for these materials is still supplied by your client. Therefore the fourth test is met. It would be disingenuous at best for you to suggest that members of TOD would come to me to purchase their BSMs when: (1) I don't sell anything even remotely like TOD's BSMs; and, (2) what I have available on my site are small excerpts limited to those portions necessary to support my criticism of the manner in which TOD promotes its business.

Discovery would show that your client still obtains a significant income from their business support materials and that the fraction of IBOs buying their business support materials is still the same as it was before the appearance of my web pages critical of their business and business support materials.

Discovery would also support the fourth and most important test. Could we find one IBO that stopped buying BSMs from TOD because he could find the useable TOD BSM's on my website for free? Discovery would reveal that I have not circumvented or replaced your client's distribution channel of BSM's, be it audiocassettes, website subscriptions or open meetings. Your client has no lost income due to any competition with my site, because I have not replaced any of the materials available from TOD that an IBO could meaningfully use in lieu of your client's products. Sales of business support materials have not been circumvented by the miniscule audio and text excerpts used in criticism on my website.

Should a "fair use" argument for some reason fail, my liability would be for "actual damages", or my "profits". Since I derive no profits from my site and the criticism of your client's business support materials, your client's damages are non-existent. A court action for Copyright infringement would be an interesting exercise in futility even if it were legally cognizable.

As to the recording of the open meeting:

The residency of Mr. Ostranger is unknown to me.

Secondly, with a high probability, neither your client nor Mr. Ostranger recorded this specific public presentation and had no plans of formally registering a Copyright for it. If Mr. Ostranger's plan presentation for that evening is not "fixed" in a medium, it is ineligible for copyright protection.

Thirdly your client must register the work before an infringement suit can be filed in court. TOD as well as Mr. Ostranger probably has nothing tangible to register.

Most likely your client is hastily registering the audiocassettes I criticize if he is truly serious about filing a Copyright suit.

Fourthly, if the last two points were somehow met for the open meeting, my use would still be covered by fair use, as it is for the TOD audiocassette excerpts.

Since Team of Destiny^® removed the image from Orrin Woodward's unprotected "show me the money" page, my direct link into the TOD website image no longer functions. Since your client removed the image from his site it automatically was not displayed on my page. No doubt on advice from you, the page was totally removed from his "copyrighted" all be it "un-password-protected site". However that image has already escaped into the public domain by being intentionally published on his un password protected page site.

I have constructed my own artwork, so use of the TOD image is not needed for my purposes of criticism of their BSM pyramid scheme. I will enclose a .pdf printout of the page showing the page was released into the public domain and available without a password from sometime around December 16, 2003 to January 15, 2004. It seems strange the page and its associated graphic, once available without password protection, have been totally removed from Orrin's site. What was there to hide? I'm surprised it took so long to cover up the publicly-posted pages I reported to you on December 22, 2003.

Concerning the Federal Wire Taping law and my supposed violation of it:

18 USC § 2511 is the Federal Wiretapping Statute, which only requires consent by one participant in the recorded conversation:

The recording of the open meeting occurred in the State of Indiana. The Indiana law piggy-backs federal law on the issue of consent: "This section does not apply to a person who makes an interception authorized under federal law." Ind. Code § 35-33.5-5-5. Thus, only consent from one participant is required was needed. I can assure you I consented to the recording.

Additionally the recorder was held in my hand in plain view so that I could get an audibly clear recording. I even sat in the first row to get the best possible recording. When the recording device is visible, consent by both parties is presumed. Additionally, most of the state statutes permit the recording of speeches and conversations that take place where the parties may reasonably expect to be recorded. It is common practice for Amway/Quixtar IBOs to record open meetings so that they themselves might improve their own plan showing abilities. Most of the other participants were copiously taking notes. I'm sure in Mr. Ostranger's five-year Amway/Quixtar career that he has also taken the opportunity to record numerous opens meetings. IBOs in his position, as a speaker in open meetings, know there is potential to be recorded. In fact the recording of meetings is generally encouraged!

From your last letter it is obvious that your client is more concerned about suppressing my first amendment right to criticize their business and BSM business, then they are about true infringement of any law.

In all of your communications about this subject, you have yet to mention damages from these supposed "Copyright infringements". It seems strange that your client would expend so much of your time on this matter when he is not complaining about lost sales of BSMs due to my website clandestinely supplying them to their IBOs. Protection of income and profits are the principle reasons the copyright law was enacted. It was not enacted to assist people who have incriminated themselves in trying to remove public criticism by alleging Copyright infringement.

I too would like to head off needless litigation, but your Copyright accusations lack clear reasoning why the customary application of "Fair Use" is invalid in this case. I have made an effort to outline and quote the specifics of the law and why I am not in violation of it. I would welcome a similarly detailed rebuttal from you.

We could certainly avoid needless litigation if you could offer more detailed and compelling argumentation why Fair Use is invalid or at least that the "fair use" provision has been recently repealed by Congress. I'm always willing to listen to a well-formulated argument. As evidenced by my modification to clear up your misunderstanding about one of the TOD-related pages on my site, I am willing to modify my site if it prevents misunderstanding and, in the Copyright infringement accusations, has some references to the actual law being invoked

With Best Regards,

Scott Larsen

Ps. I am enclosing two cases from Scientology suing a website owner, which might be helpful to you. They also concern alleged "Copyright infringement" issues.

[Scientology v FACTNet] [Scientology v lerma.html]