February 21, 2022 by Andy Maxwell
In 2018, Watch Tower filed for a DMCA subpoena that would’ve required YouTube to hand over the identity of an animator who parodied the religious group in his videos. When that stalled, Watch Tower filed a copyright lawsuit. Citing fair use, a judge has now ruled that the subpoena will not be granted. Surprisingly, Watch Tower is pressing ahead with its copyright lawsuit regardless.
Depending on opinion, the Watch Tower Bible and Tract Society, the supervising body and publisher for the Jehovah’s Witness religious group, either doesn’t like criticism, dislikes copyright infringement, or hates both.
Since cracking down on the former is all but impossible, Watch Tower keeps an eye out for people who criticize the religion by leveraging its own copyrighted material, such as videos or songs, against it.
This means that opposing opinions become somewhat of a footnote when the group launches copyright infringement action.
Background: ‘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. Some of McFree’s critical videos use copyrighted material owned by Watch Tower so in 2018, the group filed an application for a DMCA subpoena which asked a court to compel YouTube/Google to hand over his details.
McFree challenged the subpoena with a motion to quash, arguing that any use of Watch Tower material was protected under the doctrine of fair use. When that case had dragged on for three years without conclusion, in parallel Watch Tower filed a full-blown copyright infringement complaint against McFree.
In the summer of 2021, that case also ran into trouble when McFree refused to supply his real name.
Watch Tower told the court that it has “strong grounds” to request service on the defendant by email but since it has no real name to hand, the clerk of the court wouldn’t issue a summons. Watch Tower asked the court for advice on how to proceed but Judge Cathy Seibel declined, instead indicating a preference to wait for the decision of Judge Roman, who was presiding over the DMCA subpoena matter and McFree’s motion to quash.
That moment has now arrived and it is not what Watch Tower had hoped for.
Should The DMCA Subpoena Be Granted?
In an opinion and order handed down at a New York district court, Judge Roman acknowledges that McFree criticized the religion, including its “depictions of violence against women, the removal of a man of African descent from the denomination’s iconography, the denomination’s attitude toward technology, and its attitude toward outside academic pursuits among its followers.”
He also notes that following a Watch Tower DMCA notice in 2018, the Dubtown video was removed by YouTube. Despite that, Watch Tower followed up with its DMCA subpoena to YouTube/Google to identify McFree. The big question, then, is whether such a subpoena should be granted after fair use considerations and alongside McFree’s claims that the subpoena was really designed to “disfellowship him as an apostate.”
Fair Use Considerations
In considering the first factor of fair use (the purpose and character of the use, including
whether such use is of a commercial nature or is for nonprofit educational purposes), Judge Roman rejects Watch Tower’s claim that the video was not transformative on the basis that it used unedited segments of the video without commentary or criticism.
“While it is true that the Dubtown Video displays certain excerpts from Watch Tower’s works in their original and unaltered states, physical changes are not required for a new use to be transformative,” the Judge writes.
What matters, he adds, is that McFree expressed “something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Bluntly, McFree’s ‘message’ was entirely different from that of Watch Tower.
Interestingly, the Judge agrees that McFree’s use of the copyright works was indeed commercial, which counts against a finding of fair use. However, because the video was transformative, this factor is of less significance. Overall then, the first factor weighs in favor of fair use.
In respect of the nature of the copyrighted work, the Judge weighed expression and creativity elements against those that were factual or informational, with the latter receiving greater leeway when it comes to a claim of fair use. Again, the Judge decides slightly in Watch Tower’s favor given the content’s expressive and creative value.
Addressing the amount of the copyrighted work used by McFree, the Judge notes that the law can allow an alleged infringer to copy an entire work, providing the amount used is “reasonably necessary” in relation to the work’s transformative purpose.
Given that McFree used the excerpts to “parody, criticize, and comment” and “interjects, superimposes, and overdubs parodic commentary and music over the excerpted footage”, the third factor weighs in his favor.
On the final factor (whether the secondary use usurps the market of the original work) the Judge also rules in favor of McFree.
“[T]he record shows that there is no danger that the Dubtown Video will usurp the market for which Watch Tower intends its works. If anything, the record shows that the transformative nature of the Dubtown Video — namely, to criticize, satirize, and comment on the practices of Jehovah’s Witnesses — is clearly not the same as Watch Tower’s target audience,” he writes.
With the overall balance tipping in McFree’s favor, the Judge concludes that since McFree made fair use of Watch Tower’s copyrighted works, there is no basis under the DMCA for a subpoena to compel disclosure of his identity.
While this is a clear win for McFree, Watch Tower doesn’t seem interested in applying this ruling to its separate copyright lawsuit against McFree, despite it relying on exactly the same arguments.
Watch Tower Writes to Judge Siebel
Since Judge Siebel indicated that a decision in the DMCA subpoena matter might prove helpful in moving the copyright lawsuit along, Watch Tower wrote to the court with the ruling in hand.
Once again, Watch Tower laid out its predicament regarding McFree’s true identity, noting that it had corresponded with McFree via email last year and the defendant had refused to waive service because he didn’t want to fight two similar cases at once.
In the wake of the decision in McFree’s favor in the DMCA subpoena matter, Watch Tower tried again but got the same answer, i.e a refusal from McFree to waive service.
The email exchange is telling.
“As you likely are aware, Judge Román has granted your motion to quash the DMCA subpoena and that proceeding is now closed. Your condition upon which to waive service of a summons in the infringement action thus is now moot and your rationale therefor no longer applies. Please let us know if you will agree at this time to waive service of a summons in the infringement action,” Watch Tower’s email reads.
In response, a clearly surprised McFree clarified his rationale – it would be unreasonable for Watch Tower to pursue two cases “for pretty much the same thing” at the same time.
“I had hoped that the judgment in the subpoena case would result in resolving the whole case,” he told the religious group.
“My use of Watchtowers video was judged to be fair use. Which is why I wanted to avoid two cases. I believe the subpoena case has resolved everything and that the second case should now be dropped. I am at a loss to see how Watchtower still feels it can claim I infringed their copyright when Judge Roman has already judged it as fair use?”
A reasonable assumption – but Watch Tower sees things differently.
“It is Watch Tower’s position that Judge Román’s decision did not decide the issue of copyright infringement and fair use for purposes of the infringement action since the motion to dismiss was not a full and fair adjudication on the merits, including because no discovery was conducted on the motion to quash,” they responded.
Watch Tower did note, however, that McFree hadn’t published any more Dubtown videos in years, suggesting that a settlement of the case might be possible if he agrees that no more will appear. McFree didn’t bite, instead referring back to the ruling in the DMCA subpoena matter.
“I must conclude that Judge Roman’s decision in the Google subpoena case makes this lawsuit for copyright infringement, invalid. I don’t see any good reason for Watchtower to continue to harass me with more lawsuits. Because of this apparent harassment, I must refuse to accept service.”
As a result, Watch Tower wants the court to issue a summons in the name of John Doe so it can pursue its copyright infringement case against McFree who, incidentally, has no financial means to hire a lawyer to fight the case.
Whether one will step forward on a pro bono basis is unknown but it seems clear that if Watch Tower prevails, anyone who dares to rely on a fair use criticism of the religious group moving forward will receive the same silencing treatment, even if a judge says they acted entirely within the law.