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After 85 years of making great First Amendment law to enable its members to proselytize, the Jehovah's Witnesses have been mounting a fierce attack on the First Amendment right to comment on themselves

Watch Tower’s misuse of copyright to suppress criticism
by Paul Alan Levy This is a sad tale of hypocrisy on the part of a group whose litigation over the past eighty-five years has

Monday, March 07, 2022

Watch Tower’s misuse of copyright to suppress criticism

by Paul Alan Levy

This is a sad tale of hypocrisy on the part of a group whose litigation over the past eighty-five years has set many of our most important First Amendment precedents. But over the past four to five years, the Watch Tower Bible and Tract Society, popularly known as the Jehovah’s Witnesses, has been abusing judicial process to suppress commentary, mostly criticism, by obtaining subpoenas under the Digital Millennium Copyright Act to out its critics by invoking claims of questionable merit. These are typical SLAPP suits, but under the copyright laws. In almost all of these cases, the victims could not find counsel to fight back, and had to censor themselves.

First Amendment History

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.

The Present Line of Cases

So it was a bit of a shock when I learned that Watch Tower has served some seventy-two DMCA subpoenas since 2017 seeking to identify critics, many of them disgruntled current and former members who have in many cases, so far as I can tell, posted texts and videos authored by Jehovah’s Witnesses for the purpose of explaining their concerns about Watch Tower’s activities. 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!

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.

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