By Thomas Long, J.D.
Although the user had a First Amendment interest in protecting his anonymity, the organization also had an interest in enforcing its copyrights. Reddit was directed to reveal the user’s identity to the organization’s counsel, who were instructed not to reveal it to anyone else.
The federal district court in San Francisco has granted in part and denied in part a motion to quash a subpoena served on social media platform operator Reddit, Inc., seeking the identity of an anonymous Reddit user who allegedly posted copyrighted works owned by Watch Tower Bible & Tract Society of Pennsylvania ("Watch Tower"), a non-profit legal entity used worldwide by the Jehovah’s Witnesses community to direct, administer, and disseminate the group’s doctrines. The user had posted one of Watch Tower’s fundraising ads and a chart purporting to reveal the group’s information collection practices to a Reddit group devoted to critical discussion among former members of the Jehovah’s Witnesses. In the court’s view, the user had a First Amendment interest in protecting his anonymity because if his identity were revealed his speech would be chilled. However, in the court’s view, this interest was partially balanced by Watch Tower’s need to enforce its copyrights, and the court decided that the user’s interests would be protected if Reddit were ordered to reveal his identity to Watch Tower’s counsel on an "attorney’s eyes only" basis (In re DMCA Subpoena to Reddit, Inc., May 17, 2019, Kim, S.).
On January 9, 2019, Watch Tower filed a petition to request that the court issue a subpoena pursuant to the Digital Millennium Copyright Act to Reddit to discover the identity of a Reddit user known pseudonymously as "Darkspilver." Watch Tower previously had issued notices of copyright infringement to Darkspilver related to his posts on a Reddit forum for self-described former Jehovah’s Witnesses. Although Darkspilver did not consider himself a "former" Jehovah’s Witness, he asserted that he participated in discussions on the forum in order to express his concerns with some of the community’s practices. On January 16, 2019, the clerk of the court issued the subpoena, and Watch Tower served it on Reddit on January 24. Reddit had not yet provided Darkspilver’s identity to Watch Tower and filed a document stating that it joined in Darkspilver’s motion to quash.
Specifically, Watch Tower accused Darkspilver of infringing its copyrights through two anonymous posts containing, respectively, an advertisement from a "Watchtower" magazine and a chart. The advertisement encouraged people to make donations through the website donate.jw.org. Watch Tower published the ad on the website and on the back cover of the November 2018 issue of the magazine. The chart contained information of the personal data that the Jehovah’s Witness organization stored and processed along with citations to the European Union’s General Data Protection Regulation. This chart was an internal document that Watch Tower did not intend to distribute to the public.
Darkspilver asserted that he posted the ad and chart to comment on and provide information about the fundraising and information gathering activities of the Jehovah’s Witnesses organization. He stated that he had serious concerns about Watch Tower obtaining his identity and that losing his anonymity would chill his speech and would damage or destroy his relationships with friends and family who were still active in the Jehovah’s Witness community.
First Amendment test. The court noted that the First Amendment protected the right to anonymous speech, including on the Internet. In this case, the speech at issue involved a matter of public interest—commentary and critical dialogue on the practices of the Jehovah’s Witnesses—affording it a stronger standard of protection than if it were commercial in nature. The court applied a two-part test: (1) The subpoenaing party must produce competent evidence supporting a finding of each fact that is essential to a given cause of action; and (2) if the subpoenaing party makes a sufficient evidentiary showing, the court must compare the magnitude of the harms that would be caused to the competing interests by a ruling in favor of the subpoenaing party and by a ruling in favor of the anonymous speaker.
Evidentiary basis for copyright claims. Watch Tower argues that it laid out a prima facie case of copyright infringement in its subpoena application. However, the application did not address the registration of any copyright or otherwise show that either the advertisement or the chart was a copyright protected work, the court said. The only evidence supporting its claim of ownership of valid copyrights was a brief statement of attorney Paul D. Polidoro in its declaration in support of its opposition to the motion to quash, asserting that "Watch Tower [was] the copyright owner" of the ad and chart.
Darkspilver did not contest that Watch Tower had registered the publication that contained the ad and did not dispute copyright ownership for the ad. For purposes of this motion, the court assumed that the ad was part of the registered work. Nor did Darkspilver contest that he posted copies of the ad on the Reddit forum. Therefore, the court found that Watch Tower demonstrated a prima facie case of copyright infringement with respect to the ad. Watch Tower was not required at this time to counter Darkspilver’s fair use defense. Therefore, Watch Tower met its showing under the first prong of the test as to the ad.
With respect to the chart, the court said it was not clear whether the chart met the minimum standards of originality required for copyright protection. Watch Tower summarily argued that "the layout, design, and word choice [of the chart] are all creative in nature," with no supporting evidence. The court found that Watch Tower failed to meet its burden to show its ownership of a valid copyright in the chart. Therefore, Watch Tower failed to demonstrate a prima facie case of copyright infringement with respect to the chart.
Balancing of harms. The court then addressed the second prong—comparing the magnitude of the harms that would be caused to the competing interests by a ruling in favor of Watch Tower and by a ruling in favor of Darkspilver—with respect to the advertisement. Darkspilver had presented evidence that revealing his identity to Watch Tower would chill his speech on the Reddit forum, the court said. According to Darkspilver, speaking anonymously was necessary for him to feel comfortable participating in open discussions about religious teachings and practice. In addition, the court noted that Darkspilver had stopped posting on the forum and would not post there again if his identity were revealed. The court found that Darkspilver had demonstrated significant harms if his identity were revealed publicly or even if it were revealed to Jehovah’s Witnesses in his congregation.
On the other hand, if Watch Tower were unable to determine Darkspilver’s identity, Watch Tower was likely to lose the ability to enforce its copyright, the court said. Although Watch Tower was not required at this time to make a case against Darkspilver’s fair use defense, the court decided to analyze it as part of its evaluation of the balance of harms. First, the court noted that Darkspilver’s use of the ad was not commercial, but was meant to prompt conversation about the fundraising methods used by the Jehovah’s Witnesses. This factor favored a fair use determination. The ad was largely informational and functional, rather than creative, which also weighed in favor of Darkspilver. Although Darkspilver posted the entire ad, the ad was only a small portion of the copyrighted work—the magazine. Finally, Watch Tower did not demonstrate any actual harm or likelihood of future harm to any market or, or value of, the ad. Accordingly, the fair use factors all tipped "sharply" in Darkspilver’s favor, the court said. Nevertheless, the court was hesitant to deprive Watch Tower of the opportunity to develop its copyright claim and supporting evidence before it had even filed suit.
Conclusion. However, the court pointed out that Darkspilver’s concerns about his anonymity stemmed largely from his fear that his congregation would discover his identity and shun him. In the court’s view, Reddit’s revealing Darkspilver’s identity to Watch Tower’s counsel under an "attorney’s eyes only" restriction would alleviate any harm to Darkspilver. Therefore, the court granted Darkspilver’s motion to quash in part and denied it in part, directing Reddit to respond to the subpoena and provide the requested information to Watch Tower’s counsel, and directing counsel not to reveal Darkspilver’s identity to anyone else without a court order, including Watch Tower’s leadership and staff, or any expert witnesses.
This case is No. 3:19-mc-80005-SK.
Attorneys: Paul Polidoro for Watch Tower Bible & Tract Society of Pennsylvania. Joseph Charles Gratz (Durie Tangri LLP) for Reddit, Inc.
Companies: Watch Tower Bible & Tract Society of Pennsylvania; Reddit, Inc.
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