IP Law Daily, COPYRIGHT—S.D.N.Y.: Upload of entire archive of Jehovah’s Witness writings not protected as fair use, (Jul 24, 2026)

By Matthew Hersh, J.D.

But the court found companion searchable analytical tools to be plainly transformative.

A prominent religious organization was entitled to obtain from a website proxy server the name of an organization member who posted an entire archive of organization materials online in alleged violation of the copyright laws, the District Court for the Southern District of New York. But the court, in doing so, made clear that the anonymous poster made a transformative use of the materials insofar as he created and posted a companion analytical tool to facilitate searching of those materials by members of the public (In re: DMCA Subpoena to Cloudflare, Inc., No. 7:25-mc-00555-KMK (S.D.N.Y. Jul. 21, 2026)).

The lawsuit was brought by Watch Tower Bible and Tract Society of Pennsylvania, the venerable religious organization whose members are known more commonly as Jehovah’s Witnesses. The lawsuit claimed that a disgruntled anonymous member created an online archive of text-searchable Watch Tower materials along with a series of analytical tools for searching that archive via particular words, phrases, and citations to Bible verses. The organization served a subpoena under the Digital Millennium Copyright Act on Cloudflare, a company that protected the anonymity of the member by operating a proxy server between the online archive and its users.

The anonymous member of the organization, fearing reprisal from the organization and citing his First Amendment right to anonymity, moved to quash the subpoena. This opinion followed.

Motion to quash. The court denied the motion to quash. Under Second Circuit caselaw, the court noted, the standard for determining whether a motion to quash a DMCA subpoena in order to preserve the objecting party’s anonymity considers five factors: “(1) the concreteness of the plaintiff’s showing of a prima facie claim of actionable harm, (2) the specificity of the discovery request, (3) the absence of alternative means to obtain the subpoenaed information, (4) the need for the subpoenaed information to advance the claim, and (5) the objecting party’s expectation of privacy.” On balance, the court found, those five factors supported Watch Tower’s position.

The court disposed of the first four factors with little difficulty. As to the religious organization’s showing of prima facie actionable harm, the court noted, the organization easily showed that it owned a valid copyright—at least in some of the materials contained in the allegedly pirated archive—and that the former member has copied elements of the work. “That suffices to state a prima facie claim of copyright infringement,” the court found. Moreover, the court found, the religious organization had served an appropriately tailored subpoena, shown that the subpoena was necessary to advance its claim, and demonstrated, through the use of an expert affidavit, that it had no other means of unmasking the member who posted the materials.

Fair use. The court also found that the anonymous member failed to demonstrate, at least at this point in the proceedings, that his use of the materials constituted fair use. Prior to getting to the merits, the court found, it was necessary to explain some of the legal context in which the issue arose. While other circuits have characterized the legal test in other ways, the court found, the Second Circuit considers arguments of privacy, fair use, and First Amendment doctrine under the “expectation of privacy” prong of the five-part test. Moreover, fair use and free speech principles were essentially “coextensive” here, the court noted, because “absent extraordinary circumstances, the fair use doctrine encompasses all claims of First Amendment in the copyright field.” Thus, analysis of the fifth factor would come down to whether the anonymous member had made out a case of fair use.

The court found that he did not—although different factors pointed different ways. With respect to the first factor, the court noted, the anonymous member had no apparent commercial purpose in posting his materials. Moreover, the court noted, the analytical search tools that the member posted were “plainly transformative” because, as Second Circuit principles taught, “the result of a word search is different in purpose, character, expression, meaning, and message from the page (and the book) from which it is drawn.” But the same could not be said for the full-text archive itself, the court found. The anonymous member testified that his intent in posting the archive was “to enable analysis of Jehovah’s Witnesses’ teachings in a way that furthers questioning and criticism.” But unlike the tools, the court found, “that message is not evident from the archive.” Indeed, the court noted, the archive pages did not seem to include or link to any criticism or discussion of the archive’s purpose, “nor would the pages’ banner—‘JWS Online Library, Historical Archive to preserve expressions of faith’—reflect any distinct message.” The first factor, on balance, would weigh toward denial of the motion.

As to the nature of the work and the proportionality of the use, the court found, those pointed in opposite directions. Although some of the religious materials allegedly purloined contained “commonsense” factual information, the court found, it also contained “expressive content—for example, the first chapter of it includes both ordinary physical and mental health advice, and interpretations of Bible verses and what relevant information they have to offer.” The second factor, to the extent it weighed in the analysis at all, therefore weighed “slightly” in favor of the anonymous member. On the other hand, the court noted, “the archive’s copying is not proportionate to Doe’s goals.” The anonymous member claimed that he deliberately posted the entire archive to “retain credibility” to his critics, the court noted, but that was not a sufficient justification. “Doe could have disclosed only parts of the works they directly compared or critiqued,” the court noted, “or disclosed the full works only privately to Doe’s critics rather than the Internet writ-large.” This factor would weigh in favor of denying the motion.

As to the fourth factor, effect on the market, the evidence pointed both ways. For example, the religious organization pointed to the anonymous poster’s online comments “that indicate the archive could, at least for some, supplant [the organization’s] own websites and archives, by becoming available to Internet users writ-large through search results.” On the other hand, the court noted, the organization did not show that it had ever charged money to license out the works for money, indicating that whatever harm it feared as a result of market substitution was not an economic one. Accordingly, on this record, the court found, “the fourth factor tips somewhat in Doe’s favor because although Doe’s archive might have served as a substitute for [the organization’s] works, [the organization] has not indicated what economic injuries that might cause them.”

Balance of the five factors. On balance, the court concluded, the five factors pointed toward denial of the motion. Four of the five factors favored the religious organization, the court noted, “and the fifth, a close call on this early record, does not strongly favor Doe.” The religious organization had “made a prima facie showing of copyright infringement; the information sought is sufficiently specific; [the organization had] shown an absence of alternative means to obtain that information; the information is necessary to advance the claim; and Doe’s expectation of privacy hinges on whether their speech is protected, which in turn hinges on a fair use argument that Doe has not won at this early stage.” With the balancing largely favoring the religious organization, the court concluded, it would deny the motion to quash.

The Case is No. 7:25-mc-00555-KMK.

Judge: Karas, K.

Attorneys: Melanie N. Baptiste-Jean Noel (MBJN Law) for Cloudflare, Inc. Karen Olivia-Marie Stewart (Karen Olivia-Marie Stewart, Attorney at Law) for Watch Tower Bible and Tract Society of Pennsylvania. Jonathan Lucas Allen Phillips (Brown, Hay & Stephens, LLP) for J. Doe.

Companies: Cloudflare, Inc.; Watch Tower Bible and Tract Society of Pennsylvania

Cases: Copyright TechnologyInternet NewYorkNews