IT BEGAN in 2018 and lasted for 4 years. During all that time, the YouTuber, Kevin McFree was under attack by opposers of freedom of speech. These opposers were determined to make an example of Kevin McFree’s fair use of their intellectually dishonest materials. Even so, Jehovah saw fit to reward the integrity of our dear Lego animator with a legal victory. What, though, led up to this confrontation?
During the latter half of 2017, our lego animator in the United Kingdom exercised his/her right to free speech by creating lego animations that were taking a comical and critical look at Jehovah’s Witnesses’ practices and beliefs. His first video was entitled, “Lego Jehovah’s Witness Cart Song“, where he uploaded it to YouTube and has over 20,000 views as of the time this article was written. From over 150 comments of the video, one user going by the name of fishdreamsbluebeach exclaimed, “This series is Brilliant!” He then continued, “I love it when childhood trauma is turned into fulfilling creativity!”.
Many former believing Jehovah’s Witnesses have used their “childhood trauma” well by creating other YouTube channels, websites, and social media accounts to step up their advocacy work to show the more harmful aspects of Jehovah’s Witnesses. People are deeply interested in knowing how controlling and harmful the Jehovah’s Witnesses religious group are. In fact, since 2018, the growth of Jehovah’s Witnesses has stagnated. Is it any wonder that the opposers to free speech attacked by instigating a legal war? That struggle would go through two drawn-out stages before it would be finally resolved.
The first stage of the struggle began in June 2018. A couple of lawyers based in Patterson, New York, openly aligned with the Watch Tower Bible & Tract Society of Pennsylvania notified Google, Inc. that an anonymous third-party was allegedly infringing on Watch Tower’s copyright by publishing a video to YouTube. The lawyers claimed that the infringer had published the video even before the group had a chance to do so themselves. Nine days later, Paul D. Polidoro, one of the lawyers for Watch Tower issued a subpoena to Google requesting the identity of the alleged infringer. Google was reluctant to provide Watch Tower with the identifying information, most likely because the infringer informed them that legal assistance was being sought.
In August, Malcolm Seymour III gives notice to the court that he is representing the anonymous user, Kevin McFree. In his submission he claims that the lawyers for Watch Tower are using intimidation tactics “aimed at suppressing public criticism of the Jehovah’s Witnesses”, and that there was good reason why it took more than a month for McFree to seek to quash the subpoena. Seymour submitted a motion to quash, asked for leave for McFree to proceed with the case anonymously, and sought more time to address the subpoena using the argument that McFree acted in good faith. Then the opposer responds to the motion claiming that McFree has made a number of erroneous assertions. Incredibly, he makes the audacious claims that 1) Watch Tower does not coordinate the preaching efforts of Jehovah’s Witnesses, and 2) that disfellowshipping does not permanently disrupt family relationships.
The religious opposers to free speech, employed the services of Cowan, Liebowitz & Latman P.C. (CLL) to assist them in identifying Kevin McFree. CLL wrote to Google demanding they hand over information that would identify Kevin McFree. Google declined saying that they had no intention of doing so without a determination from the court. In an act that reveals frustration by the opposers, CLL requested the Court to deny McFree the opportunity to quash the subpoena and instead demand Google to hand over the identifying information.
In February 2020, almost 2 years after Paul D. Polidoro issued his subpoena to Google, Inc., the Court responds. In his response, Judge Nelson S Román permits McFree leave to file a motion to quash. He directs Watch Tower to file an opposition 2 weeks later, and another week for McFree to respond to the opposition. How disappointed the opposers to free speech must have been!
On September 28, 2020, as directed by the Court, McFree lays out the reasons why his use of Watch Tower’s materials comply with the doctrine of fair use, quoting from various cases that involved the use of copyrighted material. He further points out that there were 60 DMCA subpoenas issued by Watchtower over a three year period and “not one culminated in a claim of copyright infringement.” Ultimately, Seymour on behalf of McFree requested that the court quash the subpoena, or as an alternative, allow McFree to remain anonymous in this case and any subsequent proceedings.
In their opposition, the opposers to free speech wrote on October 27, 2020, claiming that McFree misrepresented key facts to the Court “including how and from whom he obtained leaked copies of Watch Tower’s videos”. They could not accept the truth – that he obtained them from another former believing Jehovah’s Witnesses. They claimed that because the other former Witness didn’t show all the content in his video that McFree had shown in his, there is no way that McFree could have received it from him. Would you consider this sound logic? Furthermore, they claimed the right to first publish and that they had taken precautions to protect their videos: 1) restricting access and creating authorization levels in the video production software, 2) requiring members to sign confidentiality agreements, and 3) limited and vetting non-Watch Tower storage or distribution systems by their security team and management. Watch Tower stated too, that it has seen an escalation in instances of alleged infringement since they have increased digital distribution of its works. They did admit to obtaining and serving sixty subpoenas but claimed “the responses to many of these subpoenas did not reveal information that would help identify the name or address of the infringer”. (underline ours) They used the word “many”, not “all”. They did receive the information for some of the alleged infringers but they still failed to make a claim of copyright infringement.
On November 10, McFree responds to Polidoro’s claims and reiterates that he did not receive the contentious video from “a good friend deep inside Bethel” but that he received the video of higher quality from the production team of another YouTube video critic. He also explains to the Court that he received only one video, not four separate videos as registered by Watch Tower with the copyright office. In fact, Watch Tower is being dishonest in how they are presenting their copyrighted works to the Court. Anyone who frequents the JW.ORG website to watch videos, know that the JW Broadcasting monthly video is often divided up into smaller segments throughout the month. Why Watch Tower didn’t copyright the full broadcast but only some of the smaller segments would indicate that they were attempting to deceive the court into believing Kevin McFree obtained more than one video. Four infringements of registered copyrights is worth more than one when it comes to statutory pay-outs.
Seymour backs up McFree’s statement focusing on fair use, lack of monetization, that he has been forthcoming about the source of his video footage, and that Watch Tower only registered their videos after the fact, and also only after they themselves had published them publicly online.
But then, something bizarre happened. Although Judge Román had not yet ruled on the motion to quash the subpoena, Watch Tower, through its attorneys, Cowan, Liebowitz & Latman, P.C., proceeded to bring a civil case against Kevin McFree for alleged copyright infringement. In their complaint dated May 10, 2021, Watch Tower sought relief against McFree’s alleged infringement of registered copyrights in four original audio-visual works: “Never Alone,” “Allan Boyle: Deep Study for a Clearer Picture,” “Keep a Tight Grip – Through Effective Personal Study,” and “Mark Noumair: Keep ‘a Tight Grip on the Word of Life’.” Bear in mind that all four works appear in the singular work, “JW Broadcasting – July 2018“. Additionally, they did not have the identity of Kevin McFree to serve papers on him, and it is not permissible for a court summons to be issued by email only or to a “John Doe”. Instead, they issued the summons to Malcolm Seymour of Foster Garvey.
In their complaint, the opposers to free speech claimed that McFree acted “with knowledge or in reckless disregard of WT’s exclusive rights in the WT Videos” because, they claim, they were leaked to McFree from a “good friend deep inside Bethel”. They further stipulate that McFree “has made or will make substantial profits and gains to which he is not in law or equity entitled”. As a result of the aforementioned, Watch Tower claimed that it “has been and/or will be damaged and has suffered, and will continue to suffer, irreparable injury for which Plaintiff has no adequate remedy at law”.
In their complaint issued to the Court on June 1, 2021, they want both a preliminary and permanent injunction against McFree and all others in active concert or participation with McFree from further reproduction, copying, performance or exploitation of Watch Tower videos. They also asked the Court to award Watch Tower damages incurred as a result of the acts of alleged infringement and for McFree to hand over any profits realized from “such unlawful acts, in amounts to be determined at trial, or to award them statutory damages if they so elect, each with pre-judgment and post-judgment interest thereon. One could be forgiven for concluding that the awards sought are a blatant act of greed by a non-profit religious organization. Incidentally, the Watch Tower does not describe itself as a religious organization in its filing. Instead, it refers to itself, more accurately, as a “non-profit corporation”. In fact, there is no mention of religion in its filing at all!
Two months later, CLL returns to the Court and admits that it “has made diligent efforts to determine [McFree’s] identity and address” and all they know is that McFree claims to be a “British citizen in the United Kingdom”. They knew they were running out of time to serve notice from the date they initiated proceedings. The 90 day deadline to serve notice was fast approaching. Thus, as McFree was not a U.S. citizen, they believed the deadline “does not appear to apply”. Their letter to the court dated July 12, 2021 revealed their frustration with the judicial process – they were still awaiting the ruling on the subpoena opened to identify Kevin McFree and they could not serve notice because the Court Clerk would not issue a summons to a John Doe or in the fictitious name “Kevin McFree”, so they had no summons to serve.
Three and a half years after Paul D Polidoro had issued his subpoena to identify the user by the name of Kevin McFree, Judge Nelson S. Román finally issued his opinion and order on January 18, 2022. In it, he explains that the subject matter in question “all consist of creative, expressive, and non-factual works”. It would be wise for all Jehovah’s Witnesses to make note of those last two words: “non-factual works”. If the works are non-factual, then their content is not something you should be willing to risk your life for. Considering the allegedly infringing works, he notes that Kevin McFree publishes videos featuring stop-frame Lego animations set in a fictitious village called “Dubtown” that satirize and criticize the practices of Jehovah’s Witnesses. He noted that Google removed the alleged infringing video from its platform after Watch Tower sent a copyright infringement DMCA takedown notice.
When considering McFree’s motion to quash the subpoena, he makes it clear that a subpoena must be quashed if it subjects a person to undue burden, noting that McFree bears the burden to persuade the court to do so. Román makes it clear that the Supreme Court has recognized that the First Amendment provides protection for anonymous free speech and that a court should quash or modify a subpoena designed to breach anonymity. However, he points out that the First Amendment does not provide a license for copyright infringement.
In a brief review of the case, Román shows that McFree moves to quash the subpoena because 1) WT cannot state a valid claim of copyright infringement because the video makes fair use of the works; and 2) in the absence of fair use, WT has misrepresented the true purpose of the subpoena, namely to identify and disfellowship an apostate. In opposition, WT contends that the motion to quash should be denied because 1) the motion is untimely; 2) the Arista factors support sustaining the subpoena; and 3) McFree should not be permitted to proceed anonymously because the alleged infringer fails to show the need to protect a legitimate privacy interest.
McFree was only notified of the subpoena five days before its return date, and that it took him five weeks to locate pro bono counsel. Quoting from various cases, Román makes it clear that district courts have broad discretion over the decision to quash a subpoena even if they were not filed in a timely manner. Considering McFree’s case, he agrees that good cause exists to overlook McFree’s delay in filing his motion.
In Román’s discussion of copyright, he points out to the parties that a defendant can defeat a prima facie showing of infringement by proving that the doctrine of fair use permits his or her employment of the plaintiff’s work. In addressing Watch Tower’s argument that it should not address fair use at this stage of the proceedings, the Court finds this position surprising “given that Watch Tower was required to evaluate fair use before sending its take-down notice” and that Paul Polidoro represented they had done the same, where Polidoro himself writes, “I have a good faith belief that use of the materials in the manner complained of is not authorized by the copyright owner, its agent, or the law.”
Having pointed out Watch Tower’s hypocrisy and deceit, the Court proceeds to consider the four factors of fair use:
Regarding the purpose and character of the use of Watch Tower’s materials, the Court agreed with Watch Tower that such use was commercial because Kevin McFree admitted to having a profit-making business. However, because Watch Tower makes its works freely available for download and redistribution from its website, this implies that McFree could have acquired the copyrighted works legitimately and free of cost; and also McFree did not intend on pre-empting Watch Tower’s first publication rights or intend to supplant their commercially valuable right. Therefore, the Court found in McFree’s favour. With regard to the nature of the copyrighted work, the Court explained that greater leeway is given to a claim of fair use where the work is factual or informational and whether it is published or unpublished, with unpublished works having a narrower claim for fair use. The Court found slightly in favour of Watch Tower because the works were unpublished at the time of use. In regard to the amount and substantiality of use, the Court finds that McFree used varying amounts of the videos but that in all cases they were used solely to parody, criticize and comment and therefore fall well within the realm of fair use. On the last factor of fair use, its effect upon the potential market, the Court stated that there was no danger of the Dubtown Video usurping the market for which Watch Tower intends its works. Thus the fourth factor favoured Kevin McFree.
Overall, three of the four statutory fair use factors favoured McFree.
On February 14, 2022, Cowan Liebowitz & Latman write to Judge Cathy Seibel asking for an order directing the court to issue a summons in the name of John Doe aka Kevin McFree and allow alternative service of the Summons and Complaint via email.
In their request, they inform the court that they made “diligent efforts to determine Defendant’s identity and address”. There is no denying the truth in that statement. Despite losing in their opposition to the motion to quash a subpoena seeking to identify Kevin McFree, they had initiated a case to seek out this individual despite having no identifying information other than an email address in which to address a summons. Here were a bunch of lawyers that can only be described as vicious dogs with no teeth.
After hearing about this case on TorrentFreak, Paul Alan Levy of Public Citizen comes to the aid of Kevin McFree. Along with Seymour, Levy writes to Judge Cathy Siebel and explains to her that the motion to quash the subpoena identifying Kevin McFree was issued January 18, 2022. On the merits of that case, and quoting Gunning v Doe (2017), he shows that Watch Tower cannot bring a second proceeding based on that same claim. He goes on to say that if this suit from Watch Tower has to be litigated, McFree will rely on (1) the matter that has already been judged, (2) fair use, (3) the First Amendment, and (4) the defence of copyright misuse.
About a week later, the opposers to free speech appeared before the Court along with counsel for McFree. In a transcript of the proceedings, Shimanoff acknowledged that “this copyright infringement litigation has been pending for quite some time and was essentially put on hold pending Judge Román’s decision … and, unfortunately, we were running up against a statute of limitations deadline, which is three years under the Copyright Act.” In opposition, Levy argues that res judicata comes into play here. In other words, the matter of issuing a subpoena to reveal McFree’s identity has been closed by Judge Román and therefore that judgement could then be used here to defend against issuing a separate subpoena for the same purpose. Incidentally, Shimanoff noted that “Mr. McFree has two very well-respected counsel appearing on his behalf” before claiming that Jehovah’s Witnesses “don’t have significant funds, and they don’t have unlimited pro bono counsel”. Shimanoff would do well to find out how much money Jehovah’s Witnesses do have and how much pro bono counsel they actually do have sitting in offices in Patterson, New York before making such unfounded claims.
On March 18, Shimanoff writes to Judge Siebel requesting her to serve a subpoena on Google, Inc. Paul Levy responds to this request on March 29 seeking leave to serve a motion to quash the subpoena. As both actions were a matter of agreement in the March 11 hearing, Siebel accepts Levy’s request. This agreed approach was stipulated and ordered on April 6, 2022.
To establish that Watch Tower was misusing copyright to stifle free speech, Levy says on his blog that McFree needed “to use this case to obtain a clear ruling that would prevent Watch Tower from continuing its abusive use of DMCA subpoenas to intimidate dissatisfied” members with expulsion. “By dropping the suit, Watch Tower protected itself from such a ruling.” Watch Tower also protected itself from losing a case to a so-called apostate. Their lead Witch-hunter and lawyer, Philip Brumley, has previously claimed that Jehovah would never let them lose to that degree. Is it any wonder they have never lost when they are never going to proceed with a case that they haven’t a chance of winning?
According to The Watchtower July 15, 2011, page 9, it says, “Jesus told his follower: “You will be haled before governors and kings for my sake, for a witness to them and the nations.” (Matt 10:18) The legal struggle that took place during the last 4 years offered Kevin McFree the opportunity to show up Jehovah’s legal henchmen for the evil and bullying individuals that they are. The attention focused on this subpoena and related lawsuit has indeed been “for a witness” and has contributed to “the advancement of” progressive activism.
We would like to sincerely thank Kevin McFree, Malcolm Seymour, and Paul Levy for the fight they put up against a formidable bully. Clearly, no opposing force can stop our right to freedom of speech, even if it is against an organization that claims it’s God’s spokesperson on it. The irony of their own claim is surely lost on them.
Kevin McFree is a Youtuber who has been making animated Lego videos since July 2017. His animations are set in the fictional village of “Dubtown”, which is a “Spiritual paradise since 1919”.
His videos are a satirical take on the practices and beliefs of Jehovah’s Witnesses using Lego bricks and figures.
Watch Tower notified Google alleging that an anonymous and unauthorized third-party was infringing Watch Tower’s copyright in video materials “even before Watch Tower had the chance to release those materials itself.
Paul D. Polidoro requests the United States District Court for the Southern District of New York to issue a subpoena to YouTube to identify an alleged copyright infringer with the username “Kevin McFree”
The Court grants the subpoena finding “good reason to issue an order directing the clerk to issue said subpoena … for YouTube”.
Google had not provided Watch Tower with any of the requested information.
Malcolm Seymour III of Garvey Schubert Barer, P.C., (GSB) gives notice of appearance as attorney of record for interested party and movant Kevin McFree.
Seymour, in his motion to quash, claims that the “Subpoena is a S.L.A.P.P. [Strategic Lawsuit Against Public Participation (i.e. intimidation)] tactic, aimed at suppressing public criticism of the Jehovah’s Witnesses (“JW”) through retaliatory action”. He requests, among other things, a pre-motion conference to address McFree’s “failure to seek to quash the subpoena until more than a month after the return date”.
Polidoro responds to the Motion to Quash claiming, among other things, that Kevin McFree is incorrect in contesting “that the legal entity [Watch Tower] does not seek to defend its copyright.”
Kieran G. Doyle & Eric J Shimanoff of Cowan Liebowitz & Latman, P.C. (CLL) give notice of appearance on behalf of plaintiff, Watch Tower Bible and Tract Society of Pennsylvania.
CLL “wrote to Google to ask whether it intended to produce the subpoenaed documents and information.” Google declined to comply with Watch Tower’s request unless there was a determination from the court.
Watch Tower requests the Court to “provide Google the guidance it requires and … do so by denying [Kevin McFree’s] untimely request for a pre-motion conference.”
Polidoro provides a certificate proving that JW Broadcasting July 2018 was certified with the copyright office on August 10, 2018 by Philip Brumley. He shows a screenshot of Kevin McFree’s YouTube video dated May 19, 2018 which is depicts portion of the July broadcast. And he also provides a court listing where another judge had denied a motion to quash for the Jane/John Doe with the email address [email protected]
The court informs parties that it reviewed the motion to quash; leave to proceed anonymously; the request to extend the time to move; and a letter from Watch Tower dated August 27, 2018. The court directs Kevin McFree to serve moving papers by September 28, 2020; for Watch Tower to serve its opposition by October 13, 2020; and then a reply to the opposition by Kevin McFree to be served on October 20, 2020.
Seymour, in his motion to quash the subpoena, explains why the video falls under fair use; claims that Watchtower has misrepresented its purpose; and that McFree should be permitted to appear anonymously in future proceedings.
Polidoro and Shimanoff, in their opposition to the motion to quash, claim that Watch Tower has established a prima facie (valid) claim of copyright infringement; that the subpoena is only to identify the infringer; that they have no other means to identify the infringer; is needed to advance its copyright claim; and that the alleged infringer has no expectation of privacy on YouTube.
Kevin McFree, in support of the motion to quash, explains that he uses “humour to highlight what I believe is unhealthy and damaging dogma promoted by Watchtower, through fictional characters in Dubtown”. He claims that he got the video at the centre of this case from another YouTuber’s production team.
In his final memorandum of law, Seymour explains to the court that McFree does not wish to practice their religion but that he “only seeks to prevent Watchtower’s misuse of the DMCA subpoena mechanism to thwart protected speech.”
Polidoro & CLL initiate a civil action against Kevin McFree despite the fact that the court has not yet decided on the motion to quash. The judge they use is Cathy Seibel, the same judge who denied the motion to quash in the case against “[email protected]”.
The Court gives notice that the court action against Kevin McFree has been filed.
A Court summons is issued to Seymour on behalf of Kevin McFree. This forces McFree to respond within 21 days or he risks having a judgment by default being entered against him for the relief demanded in the complaint.
CLL and Polidoro, in their complaint, lay out why they believe McFree has infringed on their copyrighted works.
In an attempt to secure a speedy determination by the court, without the decision of the motion to quash decided upon, Eric J. Shimanoff of CCL requests the court to bypass legal procedure and allow them to serve McFree via email, because they are not permitted to issue a summons to a John Doe or a fictitious name.
Judge Nelson S. Román in his opinion with regard to the motion to quash the subpoena, assesses the four factor of fair use. These are “Purpose and Character of Use”, “Nature of Copyrighted Work”, “Amount and Substantiality Used”, and “Effect of the Use Upon the Potential Market”. On the first factor, he rules moderately in favour of McFree. On the second factor, he rules that it weighs slightly against McFree. On the third and fourth factors, he rules in favour of McFree.
On these bases, he grants the motion to quash.
Shimanoff again writes to Siebel requesting the Court to permit Watch Tower to serve McFree via email.
Paul Alan Levy of Public Citizen Litigation Group and Malcolm Seymour of Foster Garvey PC notify the court that they are appearing on behalf of Kevin McFree pro bono.
Levy provides several reasons to the court why it should not permit Watch Tower to serve Kevin McFree by email. He also explains that Watch Tower has not appealed the order by Judge Román. Instead, “it is trying its luck before a different district judge.”
Shimanoff, Polidoro, Levy & Seymour appear via teleconference before Judge Siebel to explain their positions. Both Levy and Seymour claim the motion to quash the subpoena by Judge Román should have a res judicata effect. In other words, the merits of the motion to quash the subpoena should preclude Watch Tower from suing again based on the same arguments, even if it is made prior to a judgment being made. It is agreed between parties that Watch Tower can issue another subpoena to Google Inc, seeking to identify McFree but that the defense will move to quash that subpoena as before.
As agreed, Shimanoff writes again to Judge Siebel asking her to serve a subpoena on Google, Inc. seeking the identity of McFree, despite the fact that they lost on the merits of fair use in the motion to quash the previous subpoena.
An official transcript of the hearing dated March 11, 2022, is filed with the court.
Levy issues a pre-motion letter to the court seeking leave to serve a motion to quash the subpoena that Watch Tower has prepared for service on Google.
Judge Siebel accepts Levy’s request.
All parties agree that Watch Tower can issue a subpoena to Google; McFree can serve any motion to quash by email; Watch Tower can oppose that motion; McFree can respond to the opposition; all parties will provide courtesy copies of their motions to the court; and all motions will be filed within seven days of each other.
Watch Tower Bible and Tract Society of Pennsylvania dismiss their case with prejudice, much to the chagrin of Levy.
The court terminates the case.