Court Quashes 512(h) Subpoena Submitted to YouTube-Watch Tower v. Kevin McFree – Technology & Marketing Law Blog

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Court Quashes 512(h) Subpoena Submitted to YouTube-Watch Tower v. Kevin McFree - Technology & Marketing Law Blog

A “lapsed” Jehovah’s Witnesses member, using the alias “Kevin McFree,” posted YouTube videos using stop-animation of Lego figurines to criticize the Jehovah’s Witnesses. The IP arm of the Jehovah’s Witnesses (the “Watch Tower”) claimed that one such video, the “Dubtown Video,” infringed its copyright by incorporating snippets of its videos. It sent a 512(c)(3) takedown notice to YouTube, which YouTube honored. Watch Tower then sought a 512(h) subpoena to identify McFree. McFree sought to quash the subpoena.

The court says the Dubtown video wasn’t copyright infringing because of fair use:

  • Purpose/Character of Use.
    • “Movant used Watch Tower’s works in the Dubtown Video to criticize, satirize, and comment on the practices of Jehovah’s Witnesses, a manner that is fundamentally at odds with Watch Tower’s original purpose for its videos.”
    • The videos were transformative, even if parts of precedent material were used verbatim.
    • The YouTube channel was commercial. McFree moved to monetize the channel and also sold schwag.
    • McFree obtained the precedent material in a manner he knew was unauthorized, which could be considered “bad faith.”
    • Balancing all of these considerations, this factor weighs “moderately” in favor of fair use.
  • Nature of the Work. The precedent works were a mix of fact/information and creative expression, and they were unpublished. However, McFree made transformative uses. This factor weighs slightly against fair use.
  • Amount and Substantiality of Portions Used. This factor weighs in favor of fair use because “four of Watch Tower’s works amount to around thirty-two minutes and a half and the JW Video (a compilation of those four with additional footage) amounts to around fifty-three minutes, together with the fact that the [13-minute-long] Dubtown Video uses such excepts solely to parody, criticize, and comment…[and] Movant interjects, superimposes, and overdubs parodic commentary and music over the excerpted footage.”
  • Market Effect. “there is no danger that the Dubtown Video will usurp the market for which Watch Tower intends its works. If anything, the record shows that the transformative nature of the Dubtown Video—namely, to criticize, satirize, and comment on the practices of Jehovah’s Witnesses—is clearly not the same as Watch Tower’s target audience.”

Without any copyright infringement, the court quashes the subpoena. This is good news for Kevin McFree. However…

This litigation started June 2018, and it took 3.5 years to reach this point. TorrentFreak noted this delay last year. The court doesn’t otherwise explain what took so long. In the interim, Watch Tower brought a copyright infringement suit directly against McFree, doubling down on its legal position and increasing the costs and hassles borne by McFree. (This ruling ought to make the infringement lawsuit untenable).

Also, YouTube honored the 512(c)(3) takedown notice even though the video qualified for fair use and never should have been taken down at all. How many other UGC items have been removed that would have qualified for fair use if litigated in court; and how many 512(h) subpoenas have been issued for fair use activity? This ruling may be a good 512(h) outcome, but it highlights how 512(c) and 512(h) are structurally miscalibrated to produce socially harmful overenforcement.

Case Citation: In re: DMCA Section 512(h) Subpoena to YOUTUBE (GOOGLE, INC.), 2022 WL 160270 (S.D.N.Y. Jan. 18, 2022)

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