Watch Tower’s misuse of copyright to suppress criticism

by Paul Alan Levy

This is a sad tale of hypocrisy on the part of a group whose litigation over the past eighty-five years has set many of our most important First Amendment precedents. But over the past four to five years, the Watch Tower Bible and Tract Society, popularly known as the Jehovah’s Witnesses, has been abusing judicial process to suppress commentary, mostly criticism, by obtaining subpoenas under the Digital Millennium Copyright Act to out its critics by invoking claims of questionable merit. These are typical SLAPP suits, but under the copyright laws. In almost all of these cases, the victims could not find counsel to fight back, and had to censor themselves.

First Amendment History

Beginning with Lovell v. City of Griffin, in 1938, the Jehovah’s Witnesses began an admirable string of cases in the Supreme Court that have helped to establish the First Amendment rights that we enjoy today. I had the good fortune of being able to help them win one of the most recent, when I did a moot court for their in-house counsel, Paul Polidoro, when he was arguing Watch Tower Bible and Tract Society v. Village of Stratton in the Supreme Court, arguing for the right of Jehovah’s Witnesses to go door to door spreading their religious messages (and accepting donations) without having to provide their names. This long history of litigating to advance First Amendment protections, coupled with the Witnesses’ status as a minority religious sect that has encountered plenty of community prejudice, had always left me with a soft spot for the group.

The Present Line of Cases

So it was a bit of a shock when I learned that Watch Tower has served some seventy-two DMCA subpoenas since 2017 seeking to identify critics, many of them disgruntled current and former members who have in many cases, so far as I can tell, posted texts and videos authored by Jehovah’s Witnesses for the purpose of explaining their concerns about Watch Tower’s activities. As can be seen from this list of Watch Tower copyright infringement lawsuits, Watch Tower has never used the information obtained from these subpoenas to file an infringement action. The only infringement lawsuit that Watch Tower has filed against the target of one of its DMCA subpoenas is a current case (discussed below) in which enforcement of the subpoena was denied!

The apparent attractions of using DMCA subpoenas to identify critics based on copyright claims instead of filing a John Doe lawsuit include the filing fee, which is much lower than an infringement action, and the ease of submitting an application, which involves only a pro forma affidavit that does not require the sort of allegations commonly needed for an infringement action. Indeed, Watch Tower's in-house counsel (the same Paul Polidoro who helped develop the First Amendment right to speak anonymously) issues many of the subpoena requests himself, which can then easily be filed in the White Plains courthouse near the Watch Tower headquarters. It is only if the subpoena target finds counsel and seeks to quash the subpoena that Watch Tower has to justify its actions.

And that almost never happens. Instead, what appears to happen is that the targets of these subpoenas cave in quickly – as Watch Tower puts it “without the need for judicial intervention, including through written or oral communications with the infringer.” See ¶ 60 of this affidavit. And once they are identified, Watch Tower members have good reason to cave in, wholly apart from the merits, because Watch Tower has a program for systematically condemning “apostates” and subjecting them to “disfellowship” or shunning. This means that their friends and family members have to turn their backs on them and ignore anything they may say. For someone who has grown up in a small sect, or who has become invested in the sect by turning away from association with others, the threatened loss of their social world can be terrifying. Indeed, few bloggers can afford to defend a copyright infringement lawsuit on the merits, no matter how weak the copyright claim; and Jehovah's Witnesses do not tend to be wealthy. So when they receive “communications” from Watch Tower, they know what they have to do to protect themselves.

When Watch Tower has to litigate its DMCA subpoena, it loses (see below). But from what I can tell, Watch Tower considers its subpoena campaign to have been an unqualified success, in this sense: hardly anybody finds a lawyer who services they can afford, and the result is that the mere pursuit of subpoenas has brought an end to what it considers infringing uses of its copyright materials – uses for the purpose of commentary. Put in a less charitable light, Watch Tower glories in having used identification subpoenas to create a chilling effect that deters the fair use of its copyrighted material as a focus for criticism. And its campaign has been using cases in which, so far as I have been able to determine, it has relied on questionable infringement claims. I have to wonder whether Watch Tower sees free speech rights, and the right to express anonymous views about religious organizations, as being reserved for the godly (as Watch Tower defines that).

It was just such misuse of the courts to out critics of companies for purposes of extrajudicial retaliation, detailed in Jeffrey Kosseff’s recently published United States of Anonymous, that led to the formulation and widespread adoption of the Dendrite test. It is high time to bring that test to bear on Watch Tower.

Current Litigation

We are now representing such an “apostate” who fought back and won. Our client is a YouTube user who is a former member of the Jehovah’s Witnesses and who, using the pseudonym Kevin McFree, has posted a series of vlogs about the church. One of his first videos was 13 minutes long and used fragments of an as-of-that-time unpublished video made by Watch Tower that he had obtained from a confidential source. His vlog ran the excerpts and commented on them somewhat sardonically, making references that are, apparently, inside jokes in the Jehovah's Witness community. Watch Tower Bible and Tract Society secured a 512(h) subpoena to YouTube; McFree secured excellent pro bono counsel, who successfully moved to quash. The court found fair use by analyzing the fair use factors in detail. The court drew on an earlier Watch Tower DMCA subpoena case, in which the target of a subpoena to Reddit was able to secure representation by the Electronic Frontier Foundation and get the subpoena quashed, also on fair use grounds.

While the subpoena case was still pending, Watch Tower had sued McFree for copyright infringement. McFree had been unable to obtain pro bono counsel to defend against that law suit, and made the mistake of telling Watch Tower that. Armed with that knowledge, Watch Tower, instead of filing an appeal from its loss in the subpoena case, where it would have had to litigate against counsel, revved up its infringement lawsuit, presumably hoping to be able to overwhelm an anonymous pro se defendant, and maybe hoping that a different federal judge might have a different take on the fair use issue. And it has tried to avoid having to relitigate the subpoena issue by asking to be allowed to effect service by email.

The complaint is replete with signs of indiscriminate bullying. Because the copyright was not registered until months after the infringement began, and ended, there cannot be any claim for statutory damages or attorney fees. But the complaint deliberately claims those onerous financial remedies, no doubt to increase the in terrorem effect of the lawsuit.

We are arguing that the present law suit, and any possible subpoena to identity McFree, are precluded by res judicata, but we are ready to oppose a subpoena to identify McFree using the full range of issues (including fair use and copyright misuse) that can be invoked to defeat a subpoena pursued for the claimed purpose of pursuing litigation against an anonymous speaker, whether under cases such as Arista Records v. Doe, which set the standard for identifying anonymous speakers sued for infringing copyrights through the use of file-sharing platforms, and Dendrite and its progeny, which set the national standard for identifying anonymous speakers whose substantive speech is claimed to be actionable.

The Need for Volunteer Lawyers

But a broader project is needed. I'd be glad to hear from other lawyers, especially those able to practice in the Southern District of New York where Watch Tower has consistently filed its DMCA subpoenas, who are ready to provide pro bono representation (even as local counsel for others) to oppose DMCA subpoenas seeking to identify those who make use of Watch Tower materials for the purpose of commentary.

UPDATE HERE