In most cases rightsholders want alleged infringement to stop and in some, they also seek compensation for their losses. When cases deviate from this format they tend to stick out.
When they involve the protection of copyright works that generate zero income for a rightsholder, one with a reputation for crushing dissent, a big question needs to be asked. Is this really all about copyright or is copyright just a convenient mechanism to achieve something else?
DMCA Subpoenas Are Cheap and Powerful
For years the Watch Tower Bible and Tract Society, the supervising body and publisher for the Jehovah’s Witness religious group, has used the cheap DMCA subpoena process to identify anonymous people said to have infringed their copyrights, usually in music or videos. They go to court, pay less than $50, and disappear into the ether, ostensibly to protect their exclusive rights.
What makes these matters interesting is that Watch Tower does not commercialize its content, so the classic arguments about preventing lost sales are a non-starter. Neither does the group chase down people who share its music in a friendly way on social media or file-sharing networks. However, if critics (so-called ‘apostates’) use Watch Tower copyrighted content to challenge its authority or practices, bad things can follow.
The Attack on Kevin McFree
‘Kevin McFree’ (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. McFree utilized copyrighted material owned by Watch Tower in his productions, something that gave the religious group a leverage point to shut him down.
In 2018, Watch Tower filed an application for a DMCA subpoena to compel YouTube/Google to hand over his details. McFree filed a motion to quash, arguing that any use of Watch Tower material was protected under the doctrine of fair use.
After three years of legal dispute in that matter, in 2021 Watch Tower filed a parallel copyright infringement lawsuit against McFree for the same alleged infringements. Again, he refused to compromise his identity, an excellent decision considering what was to follow.
Big Win for McFree, No DMCA Subpoena For Watch Tower
In an opinion and order handed down in February 2022, Watch Tower’s original DMCA subpoena application was denied. The judge found that McFree’s use of Watch Tower content amounted to parody, criticism and commentary, and was therefore protected under the doctrine of fair use.
The killing of the DMCA subpoena meant that, at least logically, the full lawsuit had nowhere to go since McFree had done nothing wrong. But despite having a judge on record testifying to that, Watch Tower insisted that meant absolutely nothing.
The group demanded a trial on the merits and renewed efforts to remove McFree’s anonymity, all while knowing that he doesn’t live in the United States and lacked the financial means to properly defend the subpoena, let alone finance a multi-million dollar fair use battle.
So, if Watch Tower makes no money from its music and videos and would get nothing from McFree even if it had demolished him in a fair use copyright lawsuit, what did it really want?
Devine Intervention Levels The Playing Field
Copyright battles can be one-sided affairs. Deep-pocketed corporations on one side often chew up opportunist infringers on the other. If people insist on poking bears by profiting from pirated content they can’t really complain but, in McFree’s case, almost everything felt fundamentally different.
All allegedly-infringing videos were taken down years ago following initial Watch Tower complaints and no more were subsequently released. Even when it became clear that those videos were wrongfully terminated and Watch Tower had no case, the response was to pursue another lawsuit. Something didn’t sit right. Nothing sat right.
In February we pondered whether a lawyer might view McFree’s defense as being in the public interest. After reading one of our articles on the topic, attorney Paul Levy at the Public Citizen Litigation Group concluded that it was.
Once challenged to a fair fight, Watch Tower’s tactics began to unravel and then last week, it was suddenly all over. Documents filed with the court revealed that Watch Tower had not only agreed to dismiss the lawsuit, but to do so with prejudice, meaning that the matter can never return to court.
So what brought four years of legal oppression to an end?
Watch Tower Obtains DMCA Subpoenas, Never Sues
Following this important win for Paul Levy and his client, the attorney explained what went wrong for Watch Tower while confirming what we suspected all along. This was not really about copyright, it was about the usefulness of copyright law to facilitate access to something even more valuable than money – information.
In defending McFree, Levy pointed out that over the years Watch Tower had obtained 70 DMCA subpoenas against alleged infringers but had never followed those up with an infringement lawsuit. That cast doubt on Watch Tower’s declarations that it would only use the obtained information for the purposes of enforcing its rights under copyright law, Levy explained.
“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,” he wrote following the dismissal.
Watch Tower’s “Ulterior Motives”
“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’,” Levy says.
“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.”
With Watch Tower determined to press on with discovery to remove McFree’s anonymity, the religious group made a pivotal admission. What it really wanted was information that would allow it to determine the source of unpublished Watch Tower video clips that had appeared in McFree’s 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,” Levy reveals.
Watch Tower confirmed that it was planning to seek discovery on those issues and then offered to drop its lawsuit against McFree, on condition that he promised never to use any pre-publication Watch Tower materials in future, without obtaining consent.
However, citing the Supreme Court’s decision in Bartnicki v. Vopper, Levy says that McFree has every right to use leaked unpublished materials, even from a hack, providing he had nothing to do with the hacking.
Levy notes that the possible hack against Watch Tower could’ve been actionable under the Computer Fraud and Abuse Act but the statute of limitations 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,” Levy adds.
McFree rejected Watch Tower’s proposed settlement and his defense went on the offensive. Watch Tower was warned that if it continued to pursue McFree, Levy might file a document blocking it from a voluntary dismissal without prejudice, thereby locking it into litigation that it was destined to lose.
And then things got dark. Really, really dark.
A DMCA Subpoena Exposed Identity of Child Abuse Critic
One of the suspicions in Watch Tower cases is that exposing the identities of serving Jehovah’s Witnesses via DMCA subpoenas could lead to them being punished. However, the law says that DMCA subpoenas can only be used to protect the applicant’s copyright interests. In practice, that is impossible to enforce.
Levy says that during their investigations, his team discovered a 2018 DMCA subpoena that used copyright law to directly target a vehement critic who, coincidentally or not, was subsequently identified and punished by the religious group.
“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,” Levy reveals.
“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.”
Watch Tower Throws in the Towel
With Watch Tower still keen for YouTube/Google to identify McFree, Levy and his team waited for a notice indicating that a subpoena had been served. It never came. Instead of sending notice of service, Watch Tower sent a proposed stipulation to voluntarily dismiss the case, with each side to bear their own costs.
Levy’s team at Public Citizen responded by informing Watch Tower that if it wanted a guarantee that McFree would not pursue them for fees and/or abuse of process, the dismissal would need to be with prejudice. The religious group agreed.
The win for McFree is a welcome one but he didn’t get everything he’d hoped for.
According to Levy, McFree wanted a ruling that would’ve stopped Watch Tower from abusing DMCA subpoenas to intimidate future Jehovah’s Witness critics, but they avoided that by dropping his case. Nevertheless, dragging the practice out of the shadows could make it more difficult in the future.
“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,” Levy concludes.