A Reddit user’s fight to remain anonymous will continue at a hearing in San Francisco federal court Thursday in a case that lawyers for the Jehovah’s Witnesses say presents a straightforward copyright infringement issue and a civil liberties group calls a sweeping attack on online free speech.
Watch Tower Bible and Tract Society of Pennsylvania, the administrative body behind the Jehovah’s Witnesses religion, subpoenaed social media platform Reddit in January to uncover the identity of a user who allegedly violated two of its copyrights in a subforum for former Jehovah’s Witnesses. After Reddit declined to respond to the subpoena, U.S. Magistrate Judge Sallie Kim of the Northern District of California ruled that Reddit must reveal the identity of the user, but only to attorneys involved in the case.
In this week’s hearing, the Electronic Frontier Foundation (EFF), which intervened on the anonymous user’s behalf, will get another chance to potentially quash the subpoena in front of U.S. District Judge James Donato.
According to court filings, the Reddit poster, who goes by Darkspilver, was raised in the Jehovah’s Witness community and still practices the religion. Darkspilver’s lawyers contend the poster used the website to anonymously question the teachings and policies of the church, fearing excommunication or “disfellowship” if he were to raise his concerns without a pseudonym.
Darkspilver’s contested posts include a chart detailing the church’s personal data gathering procedures, which Kim found was not registered as copyrighted material, and an advertisement seeking donations on the back page of a Jehovah’s Witnesses magazine, which Darkspilver has not contested is Watch Tower’s copyrighted work.
The subpoena seeks Darkspilver’s subscriber information, name, telephone number, address, email and IP addresses, citing infringement under the Digital Millennium Copyright Act (DMCA).
To EFF, this is not a legitimate copyright case, said Alex Moss, a staff attorney and the advocacy group’s Mark Cuban Chair to Eliminate Stupid Patents. “Our client posted the [advertisement] in a Reddit post with a comment in a chain for former Jehovah’s Witnesses, where there was nothing except nonprofit commentary on an important issue with no actual, possible revenue to be generated and no commercial exploitation,” Moss said.
Watch Tower says of the 34,000 members of the subreddit Darkspilver posted on, it is only pursuing two subscribers who allegedly infringed on its copyrighted works. But Moss called the copyright issue a pretext. ”They keep calling our client a leaker and talking about leaking,” she said. “I think they are interested in finding out who our client is and perhaps they have other investigations. I don’t know exactly why they want to know our client’s name, but it’s very clear it’s not to sue for copyright infringement.”
Watch Tower, however, in its opposition to EFF’s motion, claimed that the Reddit post of the magazine ad could divert traffic away from its website, an official conduit for Jehovah’s Witness teachings.
“If widespread unauthorized reproduction and display of Watch Tower’s works online were permitted, there would be virtually no need to visit Watch Tower’s website—JW.ORG. Diverting traffic away from Watch Tower’s website could result in a significant decline in readership of Watch Tower’s content,” wrote Watch Tower’s attorneys Paul D. Polidoro, an in-house lawyer for Watch Tower in Warwick, New York, and Anthony Smith of the Law Office of Anthony V. Smith in San Mateo, California.
Despite writing that the fair use claims “tip sharply in Darkspilver’s favor,” Kim ultimately ruled that she did not want to deprive Watch Tower of supporting its claims that the posts rerouted visitor traffic and ordered Reddit to provide the requested information, but in a way that would limit access to only Watch Tower’s legal team.
“That argument is ludicrous and unsupported as it was actually carried the day,” Moss said, referring to Kim’s order. “We’re looking for opportunities to knock that out, and I think [on] the other hand, we are going to be looking at where we need to play defense.”
Moss contends that Watch Tower does not need her client’s name, since it owns the web traffic information, and diverting users to a free website does not represent market harm.
If Donato rules in favor of Watch Tower, Moss said the DMCA could be invoked to unmask other anonymous internet posters who won’t have the EFF or anyone else defending them. “When you get to the balancing of the harms, the precedent this would set, the chilling effect it would have and the power it would give international organizations to ferret out people who say things they don’t like, that’s why this is so important.”
When contacted for comment, Polidoro said, “We look forward to discussing the important issues involved in this matter when we are before Judge Donato.”