The Watch Tower Bible and Tract Society, the supervising body and publisher for the Jehovah’s Witness religious group, wants to put an end to the activities of a defendant known only as ‘Kevin McFree’.
‘McFree’ (which is presumably not his real name) is the creator of the ‘Dubtown’ series of stop-motion Lego animations that take place in a fictitious Jehovah’s Witness town.
In the summer of 2018, Watch Tower filed an application for a DMCA subpoena at a New York court, demanding that YouTube/Google should hand over his personal details based on allegations of copyright infringement.
The video was removed by YouTube but McFree also mounted a defense, challenging the subpoena. Arguments centered around the fair use provisions of the DMCA but three years later the matter remains unsettled. As reported in May, Watch Tower followed up with a full-blown copyright infringement complaint but that too has run into difficulties.
Who is McFree? Watch Tower Has No Idea
In a request for conference filed with the Court, Watch Tower says McFree “obtained purloined copies” of then-published videos and placed clips of those works in his video posted to YouTube. This amounts to copyright infringement and warrants a permanent injunction, Watch Tower says, but the road to that currently remains uncertain.
According to Watch Tower, it cannot ascertain the real identity of McFree.
“The true identity and physical address of Defendant are not presently known to Plaintiff. The Infringing Video and YouTube account associated therewith identify Defendant only by the pseudonym ‘Kevin McFree’ and do not provide any physical address,” Watch Tower writes.
According to the religious group, it has made numerous attempts to discover McFree’s personal details. Referencing the 2018 DMCA subpoena application to YouTube/Google that requested access to McFree’s real name, address, telephone number and other personal information, Watch Tower notes that the process didn’t lead anywhere useful.
Via pro bono counsel and without identifying himself beyond being a “British citizen residing in the United Kingdom”, McFree sought to quash the DMCA subpoena. Two years later, Judge Román issued an order allowing him that opportunity. Since the motion to quash is still pending, YouTube is refusing to hand over any information.
New Corresponence Proving Fruitless
After filing the copyright infringement lawsuit in May, Watch Tower said it contacted the pro bono counsel representing ‘McFree’ in the DMCA subpoena action to see if they are representing the YouTuber in this matter too. Watch Tower also asked whether McFree was prepared to waive service.
Counsel advised that they are not involved in this matter so aren’t in a position to waive service. McFree, for his part, refuses to disclose his identity, counsel added. This presents a problem for Watch Tower.
Google has already refused to hand over any information in the DMCA subpoena matter pending the motion to quash, so the religious group believes it would be futile to make a similar request in this matter. Furthermore, it appears the Clerk of the Court will not issue a summons in the name of Kevin McFree (or John Doe) and will only issue one once the defendant’s real name is known.
“Plaintiff believes it has strong grounds to request the Court allow service on Defendant via email and would like to file a motion therefor. However, even if the Court grants a motion to allow service via email, because the Clerk will not issue a summons in the name of John Doe or in the fictitious name ‘Kevin McFree,’ Plaintiff will have no summons to serve,” Watch Tower informs the Court.
Watch Tower Seeks Advice on How to Proceed, Court Declines
In its request, Watch Tower seeks a conference to determine “the best way for the case to proceed”. Unfortunately, Judge Cathy Seibel doesn’t believe it’s her place to issue advice and has denied the request.
“The Court is not clear on what good a conference would do. If Plaintiff has a proposal for moving the case forward, it can put it in writing,” Judge Seibel writes.
“The Court is not inclined to give advice on that subject, nor does it have any particular ideas other than awaiting the decision from Judge Roman.”
After more than three years, that decision is still pending. These matters usually take just a few days to conclude.
Watch Tower’s (denied) request for conference can be found here (pdf)