A year ago, the wonderful podcast, 99% Invisible, had a great episode exploring the history of state slogans and other statements ending up on license plates. It’s very entertaining and worth listening to. As part of it, it highlights an important free speech lawsuit, brought by George Maynard, a Jehovah’s Witness, to argue that New Hampshire’s “Live Free or Die!” motto on all license plates violated his own 1st Amendment rights in compelling him to advertise a slogan he felt went against his own religious beliefs.
It reminded me how frequently the Jehovah’s Witnesses, and their organization, the Watch Tower Bible and Tract Society, have been involved on the right side of important 1st Amendment lawsuits. And it’s why it’s so unfortunate that they’re now appearing to throw all of that away by abusing copyright law to try to stifle speech and intimidate critics. Public Citizen Litigation Group’s Paul Levy has all of the unfortunate details. He starts out by highlighting some of the other important 1st Amendment cases in the Watch Tower’s past:
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.
But now they’re looking to throw all of that away. We’ve talked recently about the similar abuse of the DMCA 512(h) subpoena process to try to identify the critic of a billionaire, but here it looks like The Watch Tower folks have turned it into a systematic part of their effort to attack, intimidate, and silence critics. Levy notes that Watch Tower has filed an astounding 72 copyright subpoenas since 2017. And it appears that basically all of them are to suppress speech, rather than for any legitimate reason:
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!
Part of the problem, of course, is copyright law, which — at the strong urging of the copyright industry — inserted the very low bar for DMCA 512(h) subpoenas, making it easy to abuse them, whether for copyright trolling or for suppressing speech. And, as Levy notes, Watch Tower lawyers seem to be well aware of what they’re doing here.
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.
Basically, the Watch Tower appears to know it’s abusing copyright for the sake of silencing critics and is happy about it.
That takes us to the reason for Levy’s post, which is to discuss how he’s now gotten involved in one such case:
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 got 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 resisting. 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.
It’s kind of incredible to see an organization that has fought (and won) so many important 1st Amendment cases, including those in support of anonymous free speech, now doing so much to attack that. But it’s even more problematic that modern copyright law enables such abuses.
Anyway, Levy is also looking for other lawyers to step up and help push back against this nonsense, if we have any lawyers reading this who are looking for some righteous pro bono efforts to get involved in:
But a broader project is needed. We need to find a way to stop Watch Tower’s reign of terror against bloggers who engage in fair use. We at Public Citizen can only take so many such cases. 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.
A perfect opportunity for knowledgeable lawyers to stand up for free speech, anonymity, and against problematic copyright laws.