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Watch Tower vs. McFree: Nonprofit Defends Critic’s Fair Use & Anonymity Rights


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Kevin McFree' recently fended off a Watch Tower DMCA subpoena after a judge found that his critical animations were protected under fair use. However, Watch Tower is aggressively pursuing a separate copyright lawsuit, one that deals with exactly the same issues. The big development is that McFree's plight has been taken on by the formidable Public Citizen Litigation Group.

Dubtown LegoSince 2017, the Watch Tower Bible and Tract Society, the supervising body and publisher for the Jehovah’s Witness religious group, has filed more than 70 DMCA subpoena applications in the United States.

When taken at face value, they all tell a straightforward story. Someone on the internet has breached Watch Tower’s copyrights and, as a result, their true names and addresses should be handed over so that the group can seek remedy for infringement.

Most (if not all) of these cases are targeted at the religion’s critics but not once has Watch Tower followed up with a copyright claim after obtaining the identity of an alleged offender. That raises the question of whether the DMCA is being used for copyright enforcement or simply as a tool to crack down on anonymous speech by so-called ‘apostates’.

Silencing an Apostate
One such critic is ‘Kevin McFree’, the creator of a series of Lego animations that criticize the religious group. In 2018, Watch Tower sought to silence that speech by filing a DMCA subpoena application to obtain his personal details.

McFree fought back against the request and despite limited means to defend himself, came out victorious. After reviewing McFree’s videos, last month a New York judge denied the Watch Tower application declaring that McFree’s use of Watch Tower clips was permitted under fair use.

However, Watch Tower is still pursuing a parallel copyright infringement lawsuit against McFree in another court. It covers exactly the same content and is supported by exactly the same arguments. Watch Tower doesn’t care. Instead it is doubling down and trying to de-anonymize McFree in this action, regardless of the earlier ‘fair use’ determination and in the knowledge that McFree doesn’t have the means to defend himself.

Until now, that is.

Public Citizen Litigation Group Steps In
Public Citizen Litigation Group is a public interest law firm in the United States that specializes in First Amendment rights, which includes the Supreme Court-endorsed right to anonymous free speech. The nonprofit group has now stepped in to defend not only fair use but McFree’s right to remain anonymous. The latter comes with a fairly delicious twist.

In 2002, the Supreme Court struck down a Stratton, Ohio, ordinance that made it a misdemeanor to canvass or solicit door-to-door without a permit. The Court found that the ordinance violated First Amendment protections for anonymous free speech, a clear and important win for the plaintiff…..Watch Tower.

One of the Watch Tower attorneys supporting anonymous speech in that case was Paul D. Polidoro. Yet now, two decades later, Polidoro is also the Watch Tower attorney doing everything in his power to de-anonymize McFree. The content created by McFree was deleted years ago and has been recently cleared by a judge as protected under fair use but Watch Tower refuses to back off.

“Watch Tower is Trying its Luck”
In a recent letter to Judge Cathy Seibel at a New York district court, Public Citizen attorney Paul Levy begins with an overview of Watch Tower’s DMCA subpoena application (filed at another court) that tried and failed to remove McFree’s anonymity. Levy notes that the judge in that matter determined that there was no infringement since McFree’s critical parodies were protected under fair use.

“Watch Tower has not appealed; instead, it is trying its luck before a different district judge,” Levy informs Judge Seibel.

“Parties that litigate subpoenas to identify anonymous Internet users, and lose because they cannot establish a prima facie claim on the merits (here, a claim of copyright infringement), cannot bring a second proceeding based on the same claim. Rulings on motions to quash are entitled to full res judicata effect over subsequent subpoenas seeking substantially the same information concerning the same parties.”

Watch Tower previously suggested the DMCA subpoena decision wasn’t relevant since Watch Tower was denied the opportunity to conduct discovery and was denied “a fair and full opportunity to litigate.” However, in that matter the judge said that discovery wasn’t needed for him to determine that McFree was protected under fair use.

Shining a Light on Watch Tower’s ‘Copyright Abuse’
“[I]f the merits of this case have to be litigated, McFree will rely on res judicata, fair use, and the First Amendment, as well as the defense of copyright misuse,” Levy informs the court.

“We expect to address Watch Tower’s history of pursuing similarly abusive copyright claims against dissatisfied members – ‘apostates,’ in Watch Tower’s terms – who use its copyrighted works solely for the purpose of criticism…using the threat of ‘shunning’ to suppress open dissent.”

As demonstrated in an RIAA music piracy case ruling back in 2010, alleged copyright infringers cannot simply claim First Amendment anonymity rights to avoid liability. If the presented evidence persuades the court that there is a case to answer, the right to anonymity can be overridden. However, the judge in the DMCA subpoena matter previously addressed the RIAA ruling and found no evidence that McFree infringed copyright.

Levy also addresses an attempt by Watch Tower to conduct discovery against the currently anonymous McFree by serving him via email. The religious group cited a case where that was allowed against a group of counterfeiters selling infringing goods but Levy says that the McFree case bears no resemblance to that one.

“[M]cFree is not evading court process: he has faithfully engaged with court process, retaining counsel in both the DMCA subpoena case as well as this one. Moreover, McFree lives in England, where the law forbids service via email except by express permission,” the attorney writes.

Reign of Terror Against Fair Use
A key feature of similar Watch Tower cases against supposed infringers is the religious group’s ability to wield its power against much weaker opponents. In a separate blog post, Levy describes the complaint against McFree as “indiscriminate bullying” and calls for the formation of a broader project to stop Watch Tower from abusing copyright law.

“We need to find a way to stop Watch Tower’s reign of terror against bloggers who engage in fair use,” Levy says.

“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.”
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