Jehovah’s Witnesses Abusing Copyright Subpoena Process To Unmask Critics
from the copyright-as-censorship dept
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 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.
Filed Under: anonymity, chilling speech, criticism, dmca, dmca 512, dmca 512(h), free speech, intimidation, jehovah's witnesses
Companies: watch tower bible and tract society
Comments on “Jehovah’s Witnesses Abusing Copyright Subpoena Process To Unmask Critics”
Behold, hypocrisy
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.
Incredible perhaps but not at all perplexing as they’re just making clear that the only interest they had in the first amendment was in how it benefited them, and how the second it might be used against them they are perfectly happy to tear it to shreds.
Setting aside the raging hypocrisy of the group their actions do seem to be highlighting a massive problem in the law, namely how trivial it is to use copyright law to unmask a speaker without having to jump through the usual hoops, so hopefully enough lawyers will be willing and able to step up to slap them down for trying to unmask their critics and force them to accept that they’re not the only ones deserving of anonymous speech.
Re: manipulating the system
Just like Scientology
Huh. I don’t see the usual suspects who claim to fight for free speech lining up to decry this blatant form of censorship. Must be their off-day. Funny how those tend to happen at the same time that a story about copyright-driven censorship drops… 🤔
Religion doesn't make you good...
…and often makes good people do bad things.
Enjoy your cult JW
The word is out
Screaming ‘Copyright’ will bypass almost any legal restriction.
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.
You clearly missed the bit about disfellowship. The previous 1A cases weren’t about 1A; freedom of speech, association, and religion. They were about JW getting what they wanted. They and their lawyers just accidentally happened to be correct and on the side of good in those instances.
Re: Disappointment in JW Attys
Even so, they wound up losing in Chaplinsky, 315 U.S. 568 )1042). There, JW member insulted city marshal, who was assisting unruly mob, by offering what appears to be at least likely truthful commentary concerning said citgy marshall (``You are a *** damned racketeer”). The court deemed this to be ``fighting words” properly subject to punishment.
Would they have reached that conclusion, had Walter Chaplinsky not been a Witness? Later cases suggest perhaps not. Houston v. Hill 482 U.S. 561 (1987).
(preview still borkne)
Oh Jesus, not them too.
Re:
Jesus: “Leave me out of this.”
Christ: “What an asshole.”
Re:
Presumes facts very much in evidence.
Don't have my U+P on this tablet
Sign me up What can I post about them? The First is inviolate. I signed up once to defend the country and I’ll do it again.
JWs are a worldwide pedophile sanctuary...
…and child sex slave organization posing as a religion. I’d like to see lawyers take on the JW organization for: 1) their “disfellowshipping” and shunning policy because that’s why they’re trying to find the identity of these folks. So they can disfellowship them – meaning everyone in the organization, including their own families, can never acknowledge their existence again. People commit suicide over being shunned in this organization. They brag that they disfellowship upwards of 10,000 people/year. You can be disfellowshipped for leaving the religion. That’s not a religion, it’s a cult. 2) their insistence on the “2 witness rule” in investigating child sexual abuse claims. If there isn’t a confession, the child must present an adult witness to the molestation. Since pedophiles rarely take a witness with them, this makes them a pedophile sanctuary. And if the child is reporting it’s own parent, this makes them a child sex slave organization. They are told to go home and hug daddy and apologize for lying. There are literally 10s of thousands of victims and the Watchtower Bible and tract society refuses to hand over their secret list of accused pedophiles even when court ordered. They’ve paid millions of dollars in court fines to keep their list secret. 3) for their doctrine of no blood transfusion. If someone gets a blood transfusion, they are disfellowshipped and shunned. It’s estimated the mostly mothers and newborns that die each year are in the 10s of thousands. They make the members sign medical directives stating they refuse blood, inform them they are to contact their local elders if they go to the hospital, and have a “Hospital Liaison Committee” that literally sends 2 men to stay with the patients in the hospital to make sure they are not given blood.
Please do an internet search on any of these subjects to see all the documentaries and lawsuits because of these issues. Several countries have removed their charity status as well as their status as a recognized religion. The most recent being Norway and Holland is now considered it. Thank you very much for considered my request.
Re: believing the difficult to believe
Ultimately, a religion is believing something incapable of being disproved.
Belief that emacs is better or worse than vi is a religion; which side you prefer will depend on your personal choice for ``better”. Belief that only 144000 Witnesses should enjoy eternal reward is not disprovable, even if it seems unlikely. Russell’s teapot is out there as well.
It may be that the particular religion, including the views on kiddie diddling that you mention, is abhorrent to a large number of what we will call ``right thinking” people. Remember that, at one time, Protestant views were considered outside of the mainstream, subject to punishment.
Belief that the service hosting Techdirt will never fix “preview” may come close to beling a religion.
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To all the anti witness trolls
https://www.techdirt.com/user/mmasnick/ don’t get your underwear in a bunch.. This user doesn’t like ANYONE that claims copyright against trolls. He sees it as “free speech”
But its just trolls mocking other people and using the copyrighted content of that group or person to assist in the mockery.
Then the troller tries to call it “parody”
All the while many make money from their hate group followers. Like Lloyd evans does.
Re: Excuse me?
You’re suggesting that it’s okay to literally abuse copyright law to try to violate the 1st Amendment rights of people because you don’t like them mocking people?
Re: Re: Reply to mike masnick
Excuse me BUTT, your choice of the word ‘abuse’ is your own subjective opinion. If you don’t like the law write your congressman. Wt attorneys used the law to their advantage and did so legally. So tough shit if you don’t like it.
I have a book to publish about disfellowshipping containing properly referenced Watchtower copyrighted materials
The defense based on the Reference 17 U.S.C. § 107 – U.S. Code – Unannotated Title 17. Copyrights § 107. Limitations on exclusive rights: Fair use …for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright.
I can honestly say it will enrage them into a massive attempts to sue and many legal trick. Any help you can point me to in a successful method to successfully stop their efforts will be appreciated.