Back in March we reported that the Watch Tower Bible and Tract Society, the publisher for the Jehovah’s Witness religious group, had gone to court to obtain a DMCA subpoena.
The aim of the group was to discover the personal details of a self-declared ‘apostate’ who uploaded Jehovah’s Witness sermons to YouTube in breach of copyright. These are usually open-and-shut cases but when an anonymous movant stepped in to contest the application, things got pretty stormy to say the least.
As reported in April, the anonymous individual filed a series of documents with the court, branding leaders of the religious group as ‘pedophiles’ and suggesting that Judge Cathy Seibel’s alleged friendship with Watch Tower’s attorney could be undermining the judicial process. While largely irrelevant to our copyright-focused reporting, it should be noted that those claims were just the tip of the iceberg.
Profanities aside (and they were present in abundance), the anonymous movant declared protection under fair use doctrines and drew attention to the fact that despite filing applications for 59 DMCA subpoenas, Watch Tower had never followed up with an actual copyright lawsuit. These matters and more were subsequently addressed by Watch Tower and Judge Seibel.
Watch Tower: DMCA Subpoena Process Was Used in Good Faith
In a memorandum and declaration, Watch Tower attorney Paul D. Polidoro said that beginning June 2018, the religious group undertook “concentrated efforts” to address the “global theft” of its intellectual property. Part of this was exercising its rights under the DMCA, including applying for subpoenas. According to Polidoro, however, these didn’t bear much fruit.
Using the words of the anonymous movant against him, the attorney noted that things like “VPNs, anonymous proxies, and TOR exit nodes” frustrate Watch Tower’s enforcement efforts to discover the true identities of alleged infringers.
“When some identifying information was obtained, usually the infringer resided outside of the United States, such as in South America or Europe,” Polidoro wrote.
“At the end of last year, Watch Tower’s Legal Department was finally able to identify a few potential domestic defendants to bring a copyright infringement action. Undertaking litigation with its attendant expenses was and is carefully considered because Jehovah’s Witnesses’ efforts are ‘supported entirely by voluntary donations’.”
In the end, however, Watch Tower decided that legal action against someone was required and in December 2019 took the decision to sue an alleged copyright infringer. According to the filing, work on the case has been taking place since the beginning of 2020 but due to the coronavirus pandemic, the complaint was delayed.
“Watch Tower’s forthcoming copyright infringement lawsuit will not end its efforts to take steps to address other ongoing continued infringements. To this end, Watch Tower will continue to avail itself of its statutory rights to pursue DMCA subpoenas to identify other potential defendants,” Polidoro warned.
Watch Tower: No Fair Use in This Case
What followed was a case-by-case analysis of five videos posted by the movant to YouTube. In previous filings, the movant stated that the videos were “undercover” recordings of Jehovah’s Witness sermons but according to the religious group, they were all posted in their entirety and without criticism, as might be the case when attempting to make a fair use claim.
Only making matters more complicated was a subsequent motion to quash by the anonymous movant which stated that the DMCA subpoena itself was invalid because the five videos referenced by Watch Tower had already been removed from YouTube by YouTube itself, before the notices had been issued.
“[B]y the time Watch Tower had issued its DMCA notices for the five allegedly infringing videos in the case at hand, the five videos had already been removed by Google/YouTube because Google is a huge piece of shit who doesn’t have to do their fucking jobs right,” the motion notes.
“So ‘Hooray for the pieces of shit at Google for being so quick on the trigger and heavy-handed with their ban hammer!’ But I guess that means that this subpoena must be quashed.”
No, Possibly, and Mind Your Language, Judge Declares
“Having heard further from the parties, I deny the motion to quash,” Judge Siebel wrote in her recent order settling the matter.
“Watch Tower has provided an explanation for why it has not pursued more cases, as well as evidence that the alleged infringement would not constitute fair use because the videos are full-length and not accompanied by criticism. That there may be criticisms in the comments section [on YouTube] does not render the initial postings fair use.”
On the validity of the DMCA subpoena, the anonymous movant may enjoy more success, but only within tight parameters.
“Movant argues that the subpoena is unenforceable because the videos were all taken down before Google received notice. I am dubious, because this allegation contradicts what Movant alleges elsewhere — that the videos were taken down only after the notices were received — and because in Watch Tower’s initial declaration, it attached a letter it sent to Google asking it to take down the videos,” the Judge notes.
“But the subpoena would be unenforceable if the material had been taken down before the notices were received, so Watch Tower’s counsel should provide Google with a copy of this text order, and Google is advised that compliance with the subpoena is not required if in fact the videos were taken down before Google received any notice of the possible infringement.”
With the matter of the DMCA subpoena now apparently over, Judge Siebel took the time to add some personal advice to conclude her order. Having made no attempt to rein in any of the language used in the dispute thus far, she had the last word indicating she was far from happy.
“Finally, some free advice for Movant: Inflammatory, vulgar and abusive language in court filings is not a good idea.”
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