On Thursday, August 1, 2019, Watch Tower lawyer, Mr Paul D. Polidoro, entered the United States District Court for the Northern District of California in San Francisco. His goal? Find out the true identity of the Reddit user, Darkspilver.
Below are excerpts from the transcript of the proceedings, kindly donated to AvoidJW.org.
The Court: … So your position is, as far as your client is concerned, Darkspilver is perfectly free to criticize the Church all day, every day, for being avaricious and greedy. His words, not mine. But you draw the line when he starts using your own copyrighted material as part of that.
Mr. Polidoro: Precisely … Darkspilver can say whatever he wants from his own mouth; he just can’t violate other individual’s copyrights.
The Court: Wouldn’t you agree, though, that really the issue here is whether the use of the copyrighted materials would be fairly characterized as fair use or not?
Mr. Polidoro: … we think that’s premature as an assessment … We have a cause of action. It’s copyright infringement … There’s the opportunity to have pretrial deposition, to actually see someone face-to-face and move forward with the case. Watch Tower, as the copyright holder, also has the right to seek a permanent injunction against Darkspilver for the violation of its copyright rights.
The Court: … how are you going to manage Lenz?
Mr. Polidoro: I think Lenz there was a discussion of what’s the role of fair use in this whole process. And what Lenz said is it’s a subjective good-faith belief that the copyright holder needs to do something, just not nothing willy-nilly sending subpoenas out all over.
The Court: … Lenz clearly says it’s the copyright holder that must consider the possibility of a fair use issue … I think Lenz pretty clearly says the burden is on the holder … do you agree with that?
Mr. Polidoro: I think so. I think Lenz has gone beyond with respect to fair use. But having said that, Your Honor, I think Watch Tower complied with it.
Ms Moss: Lenz is a suit about wrongful takedown. This is Watch Tower’s effort to enforce a subpoena. The fact that copyright holders have to consider fair use before even sending a takedown notice confirms that courts have to consider fair use before enforcing the DMCA. My friend’s effort to rely on Lenz completely ignores the procedural context of that case and of this one … The whole point of the fair use doctrine is to allow people to use other people’s copyrighted works for purposes of criticism and commentary without getting consent from the copyright holder.
The Court: Just on that issue, the whole work? Why not just a couple of lines from the work? Why just take the entire article un-transformed and just put it up? You know, copyrighted material … I certainly think it’s fair to comment on it, have quotes from it. I don’t think there’s any doubt that that would be, in this context, fair use … But when you take a wholesale document and just throw it up … how is that fair use?
Ms. Moss: If our client had taken the whole Watch Tower magazine and put it up on a link downloadable … we might be having a very different conversation. Our client took one page, the Back Page. As Judge Kim, said this is a small portion of a 32-page work. The registration that they’ve given you shows that what’s registered is the entire magazine. So whatever may or may not be a standalone link on JW.org, what’s registered is an entire volume of which the portion our client used was one thirty-second … I would be interested if there was any registration for that freestanding article or whether the registration was for the whole magazine.
The Court: Well, the registration I have is for the volume, not the individual page. Is that right?
Mr. Polidoro: That’s correct, judge.
The Court: Okay. So there’s no separate copyright just for that one article?
Mr. Polidoro: No, we wouldn’t copyright every page … If I can turn Your Honor’s attention to Hustler Magazine versus Moral Majority … and I quote:
A creative work does not deserve less copyright protection just because it is part of a composite work. Therefore, in this case, we view the defendants as having copied an entire work.
In that instance, the defendant copied one page from a 154-page magazine … and in the case of Monge versus Maya Magazines … it speaks of the question Your Honor has posited:
The evidence reveals that generally exact copies of whole or substantial portions of article are posted. There is little transformative about copying the entirety or large portions of a work verbatim.
Ms. Moss: … The advertisement … was largely informational and functional, directing readers how to make donations online. Your Honor, if you take a look at that Back Page, there is very little creative content to it. In fact, the … article consists largely of Biblical quotes that … Watch Tower couldn’t have written itself. In fact, looking at the Back Page, it’s not a creative work of the kind at issue in the cases counsel has cited. It’s a functional and informational Back Page that primarily focuses on instructions for how to make online donations. Our client could not have used any less than that whole Back Page because the whole point was to show that Watch Tower was using the entire Back Page to solicit and instruct people on how to make online donations … Our client’s point was really to show, Look what they’re using the Back Page for, and look how much of it is being used. And that was the point of their comment, saying, What gift can you give Jehovah? Guess what? And it was to … suggest to others that they should think critically on what was happening on that Back Page. And in case after case the question isn’t whether it’s one page or the all of it. It’s whether any less would have served the transformational purpose. And here they just couldn’t have used less.
The Court: Okay. That was very helpful …
Mr Polidoro: Religion is protected. Religious discourse under the Worldwide Church of God versus Philadelphia Church of God … says that scriptural discussion is precisely the type of creativity that the Copyright Act was intended to protect. Harper versus Rowe says that there’s not a free license to reproduce whatever you want. And what Judge Kim said is that Darkspilver reproduced it to evoke conversation. The Supreme Court has already ruled on this and said there’s no warrant for judicially imposing a compulsory license.
The Court: Did you send a takedown notice to Reddit?
Mr. Polidoro: Yes.
The Court: Did they take it down?
Mr. Polidoro: Yes. They took down the ad. They did not take down the chart.
Ms. Moss: … Our client took the chart down.
The Court: So the chart is off. So your client took the chart down and Reddit took the ad down … Mr. Polidoro … let’s talk practically here for a moment. The poster is outside the … United States … it’s off the Web now. It seems the Church’s main concerns have been addressed by the takedown … Darkspilver has cooperated and voluntarily took it down. Isn’t it enough to call it a day and not necessarily find out who he is or she is?
Mr. Polidoro: … Watch Tower … has the right to move forward with copyright litigation where appropriate.
The Court: That person doesn’t live in the United States, so what are you going to do?
Mr. Polidoro: … just because he doesn’t live in the United States doesn’t mean we can’t bring action against him, wherever he is.
The Court: … You’re going to have to sue under the law of a foreign jurisdiction.
Mr. Polidoro: That’s the whole purpose of the statute, Your Honor, allow the copyright holder to gather information to make those decisions. And my client would make those decisions.
The Court: Injunctive relief is moot because the article has been removed. So you’re looking at damages. What are they, statutory damages?
Mr. Polidoro: Statutory damages for the article on donations but also Watch Tower’s right to pursue a permanent injunction. They have their array of statutory rights as a copyright holder … we also have a bigger picture … which is protecting JW.org.
The Court: I understand. And that’s perfectly legitimate. And that’s what the notification and takedown process is for. You’ve achieved total victory with that. I’m not sure what total victory plus really means.
Commentary:
Mr. Polidoro makes it clear that Watch Tower has the right to move forward with copyright litigation. This is important, when a devoted member of Jehovah’s organization would take to heart the words in the Watch Tower publication Examining the Scriptures Daily – 2019, where it makes the following statements for Monday, August 5:
A physical man does not accept the things of the spirit of God.—1 Cor. 2:14 … A physical person is often excessively concerned about prestige and material pursuits or about defending what he feels are his rights. People who engage in any of “the works of the flesh” fall into that category. (Gal. 5:19-21) A fleshly attitude includes … taking one another to court…
Examining the Scriptures Daily – 2019 (Monday, August 5) underlines for emphasis.
Mr. Polidoro …
… Isn’t Watch Tower the same organization that wrote to its members that “defending what he feels are his rights” and “taking one another to court” are the traits of “a physical person” and those of one with “a fleshly attitude”?
… Shouldn’t your client take the lead in following its own advice?