by Paul Alan Levy
The effort by the Watch Tower Bible and Tract Society (a/k/a Jehovah’s Witnesses) to identify a dissident member, "Kevin McFree," through a spurious claim of copyright infringement has ended with a whimper rather than a bang as Watch Tower agreed to dismiss its copyright lawsuit with prejudice to avoid a possible claim for attorney fees. But the facts revealed by its conduct of the case, and its failure to pursue other cases, casts even further doubt on the bona fides of its extensive use of DMCA subpoenas to identify critics who uses its print and video works as the subjects of discussion
I wrote about this case after we first told the Court why Watch Tower could not prevail on an infringement action, or on a motion for leave to identify our client for the purpose of pursuing an infringement action, because it had already lost its DMCA section 512(h) subpoena action based on a holding of fair use, and it had allowed that ruling to become final by not pursuing an appeal. In that article, I noted that Watch Tower had filed more than seventy DMCA subpoenas, obtaining enforcement by default, but had never once filed an infringement action against a Doe thus identified. In fact, the only DMCA subpoena target it ever sued was the one target whom it had FAILED to identify – because the DMCA subpoena to identify McFree had been quashed. This casts doubt on the assertion that Watch Tower has to make to get DMCA subpoenas issued: that it will use the information only for the purpose of enforcing its rights under copyright law.
But matters continued to get worse for Watch Tower, and both its inability to be straightforward in explaining its actions, including making misleading statements to the court. and the likely ulterior motives for its actions, became increasingly clear.
Denouement of the Litigation
First, when Judge Cathy Seibel conducted a pre-motion hearing on Watch Tower’s stated desire to serve “apostate” Kevin McFree by email, she made clear (transcript is here) her serious skepticism about Watch Tower’s ability to pursue the case in light of the res judicata effect of Judge Roman’s ruling in the DMCA subpoena case. She also said that she agreed with our argument that the proper way to proceed would be a motion for leave to identify our client, to which we would respond by a motion to quash, the ruling on which either side could take to the Court of Appeals. And the fit between the issues on such a motion and Judge Román’s ruling on the DMCA subpoena case would have been close, making grant of the motion to quash on res judicata grounds nearly inevitable.
During the hearing, Watch Tower’s counsel made the outrageous statement that Watch Tower’s litigation strategies were confined by a lack of “significant funds,” and that its approach to the litigation was guided by “significant economic motivations." (bottom of page 18 of the transcript). Because Watch Tower’s 990T forms are publicly available as required by law, it is a matter of public knowledge that Watch Tower has more than a billion dollars in assets. Watch Tower is fortunate that it never made this representation about limited resources in a signed document.
At our suggestion, the Court asked the parties to agree on a briefing schedule for the planned motion to quash, but that proved not to be possible because Watch Tower made clear that it was going to try to pursue discovery having nothing to do with its copyright claims. Rather, Watch Tower told us that it planned to use the infringement action to pursue the question of how McFree had obtained the previously unpublished videos. The Watch Tower headquarters is a leaky sieve and it wants to identify the leakers. Beyond that, there may have been a massive hack of Watch Tower’s computer systems several years ago. Watch Tower made clear that it was planning to seek discovery on those issues as part of its opposition to the planned motion to quash. It demanded a briefing schedule that would have allowed it to postpone explaining how it could obtain McFree’s identifying information despite the res judicata defense until it had had the opportunity to pursue discovery. At the same time, it told us that it was willing to drop its lawsuit with prejudice so long as McFree was willing to agree that he would never use any of Watch Tower’s materials before Watch Tower’s own publication of those materials without Watch Tower’s consent.
Of course, under the Supreme Court’s decision in Bartnicki v. Vopper, McFree has every right to use leaked unpublished materials, even if obtained from people violating a confidentiality contract, and even unpublished materials obtained by illegal hacking, so long as McFree had no involvement in the hacking. And although the possible hack of Watch Tower’s computer might well have been actionable under the Computer Fraud and Abuse Act, the statute of limitations on that cause of action expired years ago. So it became apparent that Watch Tower was trying to leverage a barred copyright claim, and the threat of identifying McFree, to obtain relief and or discovery on a different subject entirely – a possible abuse of process. McFree rejected this proposed settlement outright, and we warned Watch Tower that if it persisted in the litigation, we might file a document blocking it from a voluntary dismissal without prejudice, thus locking it into litigation that it was sure to lose. We urge it to drop the case immediately.
And yet, interestingly, Watch Tower was not pursuing identical copyright claims against another YouTube user, Lloyd Evans (blogging as John Cedars), who used the same unpublished videos that McFree had used (and many more). Watch Tower did not go after Evans because it knew that he was not going to take any guff. Watch Tower represented that the reason it had pursued the anonymous Kevin McFree for his use of the unpublished 2018 video instead of filing an infringement action against Lloyd Evans was that it had not known of his use of such unpublished videos. In fact, Watch Tower’s inhouse counsel submitted an affidavit averring that Watch Tower did not learn about a a particular Cedars video until September 2020, when McFree mentioned the video in his papers.
But we learned, in the course of investigating the case, that Watch Tower sent Evans a demand letter in 2018 pertaining to his use of leaked and unpublished convention videos from that year. That letter cited the URL for Evans’ You Tube channel and made clear that Watch Tower was monitoring its content. It is hard to believe Watch Tower's assertion that it did not know until 2020 about Evans’ use of the same material on which it was pursuing McFree.
And finally, in the course of investigating the case to prepare for briefing, we obtained useful information to address Watch Tower’s false assertion that it wanted to identify alleged infringers only for the purpose of pursuing copyright claims against them. Watch Tower succeeded in using a DMCA subpoena obtaining the identity of a previously identified blogger who specialized in attacking child abuse within the group, and Watch Tower's refusal to report abuse to local authorities. Shortly thereafter, it initiated disfellowship proceedings against him. It is quite possible that Watch Tower did not need the information it obtained under the DMCA (because this blogger’s identifying information had become available elsewhere), but even so it never sued him for copyright infringement and it never otherwise used his identity to enforce its copyright. Watch Tower had got what it wanted — revenge.
In the meantime, before we had a chance to file a letter explaining to Judge Seibel why we objected to Watch Tower’s proposed approach to briefing, Judge Seibel denied Watch Tower’s efforts to build time for discovery into the briefing schedule (see item 27 here), and we then stipulated to a timetable that required Watch Tower to provide notice after it served its subpoena on YouTube / Google. Then…. we waited. And waited.
Finally, a month later, instead of sending notice of service of the subpoena, Watch Tower sent a proposed stipulation to voluntary dismissal of the case, specifying that each side would bear its own fees. We could, of course, not prevent Watch Tower from dismissing the case without prejudice given the early stage of litigation, but we responded that, if Watch Tower wanted a guarantee that McFree would not pursue a claim for fees and/or abuse of process, it would need to dismiss with prejudice. That happened this week.
Have We Prevented a Recurrence of Watch Tower’s Abuse of This Process?
McFree had hoped to use this case to obtain a clear ruling that would prevent Watch Tower from continuing its abusive use of DMCA subpoenas to intimidate dissatisfied or recently departed members who stand to suffer from imposition of shunning penalties. By dropping the suit, Watch Tower protected itself from such a ruling.
Kevin McFree deserves a great deal of credit for being willing to stick to his guns and not let Watch Tower out of the case easily. It is perhaps because of this litigation that Watch Tower has not filed any new DMCA subpoenas since we entered the case late last winter. But only the future will tell whether it has truly been deterred from future abuse.
Thanks also to Malcolm Seymour, who won the DMCA subpoena case and then served as co-counsel in the copyright litigation, and to Torrent Freak, whose article about the litigation called my attention to the situation and led to my involvement.