Court Greenlights Jehovah’s Witnesses’ Unmasking of Online Critic–In re DMCA Subpoena to Cloudflare

July 23, 2026 · by · in Copyright, Privacy/Security

The Jehovah’s Witnesses (the Watch Tower Bible and Tract Society of Pennsylvania) sought to unmask a Doe who uploaded an archive of religious texts, along with some associated linguistic parsing tools, to a website (https://jws-library.one). [That URL now says: “This site has been taken offline out of an abundance of caution while we review relevant matters.”] The Jehovah’s Witnesses submitted a 512(h) subpoena to Cloudflare, which provided cybersecurity (proxy) services to the website. Doe (represented by the EFF) and Cloudflare challenged the subpoena. The court is skeptical of Doe’s fair use defense, rejects the challenge to the subpoena, and greenlights the subpoena.

The Court Ruling

The court addresses Doe’s concerns via the “expectation of privacy” factor for considering subpoenas, which is a little tone deaf because there are other major social considerations at play beyond just privacy. In any case, those expectations of privacy depend on the case’s substantive merits, which in turn depends on copyright fair use. The court isn’t very sympathetic to Doe’s fair use arguments. It summarizes: “With the first and third factors clearly favoring Petitioner, the second factor only somewhat favoring Doe, and the fourth factor favoring Doe, the Court cannot find at this stage that Doe’s archive constitutes a fair use of Petitioner’s works.”

Nature of Use. Doe’s website had no hint of commerciality, and its linguistic tools were transformative. However, the archive was not transformative. The court points out how Google Books only displayed snippets, while the archive displayed full texts, so this was more like Internet Archive’s Free Digital Library. “[W]hile the material in the archive is plainly necessary for Doe’s non-infringing uses of the material, it does not follow that Doe’s publication of the entirety of that material online, separate and apart from Doe’s transformative commentary, is also a transformative use—especially because Doe’s analytic tools have continued functioning after the archive was taken down.”

Nature of Work. “Because the work at issue here is published and contains a mix of factual and expressive content, this factor—if it favors any side here—slightly favors Doe.”

Amount Taken. “the archive’s copying is not proportionate to Doe’s goals….Doe’s critical goals could have been achieved with more tailored disclosure of the works….Doe does not explain why the public disclosure of the full copyrighted work was necessary to retain credibility—Doe could have disclosed only parts of the works they directly compared or critiqued, or disclosed the full works only privately to Doe’s critics rather than the Internet writ-large.”

Market Effect. The Jehovah’s Witnesses “license copies of the materials included in the archive for research use…That is not inconsistent with Petitioner publishing the works free of cost: Petitioner may make the works publicly and freely available to read, but not to copy….the archive could, at least for some, supplant Petitioner’s own websites and archives, by becoming available to Internet users writ-large through search results.” But, the Jehovah’s Witnesses didn’t provide evidence that it charges for its licenses, so the archive may not have an economic impact on it. That tips this factor towards Doe.

In total, the court views the fair use factors as a mixed bag. As a result, the court says that Jehovah’s Witnesses is entitled to the unmasking subpoena because it meets the other qualifications for subpoena issuance, and the fair use defense wasn’t strong enough to flip that.

Implications

I imagine this case will be appealed to the Second Circuit. There are several good appealable angles, including how courts should consider the free speech implications of 512(h) subpoenas and whether the district court should have been more charitable to Doe’s fair use arguments.

The court opinion doesn’t acknowledge the greater context of how religious institutions use copyright law to target and suppress online critics. These scuffles are as old as the commercial Internet. For example, the seminal 1995 RTC v. Netcom case–which established the notice-and-takedown model that turned into the DMCA 512(c)–was a Church of Scientology enforcement action against an online critic. Earlier this year, Prof. Cathay Smith covered another case in this genre (“A Religious Organization is Suing its Critics, and the Weapon of Choice is Copyright—RRT v. Cheryl Bawtinheimer“). Also see my paper with Prof. Silbey on copyright as a memory hole.

Religious institutions are entitled to create and enforce copyrights just like everyone else, but their enforcement practices often look and feel different than most other copyright owners. For example, the opinion noted that the Jehovah’s Witnesses claim to have a licensing program for researcher copying of its materials, but there isn’t evidence that those licenses generate revenue. Instead, the copyright licensing scheme most likely advances non-financial interests–such as the suppression of criticism–that aren’t really what copyright law was designed to do. Indeed, even in this era of extraordinary transparency, some religious institutions still effectively prevent “outsiders” from knowing about–and thus potentially critiquing–their inner workings. Archives of religious texts are a crucial counterbalance to that secrecy and any associated avoidance of accountability. It would have been better if the court had engaged with this broader context, rather than essentially treat this as a routine one-off interaction between a religious institution and an unhappy member.

A reminder that 512(h) is a fast lane to unmask online actors, and it was written without adequate privacy safeguards. In this case, the Jehovah’s Witnesses can potentially impose a range of extrajudicial consequences on Doe once unmasked, such as excommunication. This expanded toolkit of extrajudicial remedies is another way that religious institutions’ copyight enforcements are different than other copyright owners. Troubingly, 512(h) hands them a powerful and dangerous tool for misuse and abuse.

Also, I was confused about Cloudflare’s status as the target of the 512(h) subpoena. The court glosses over the services Cloudflare provides to Doe. Courts have repeatedly said that 512(h) doesn’t apply to IAPs because they don’t host anything. Is Cloudflare more like a host or an IAP in this circumstance? Unless the court explains how Cloudflare qualifies as the website’s host, it would have been helpful for the court to consider the implications of applying 512(h) to website vendors.

Case Citation: In re: DMCA Subpoena to Cloudflare, Inc., 2026 WL 2110881 (S.D.N.Y. July 21, 2026). The CourtListener page.

EXTRA: In re DMCA Subpoena To Reddit, Inc., 2026 WL 1847873 (N.D. Cal. June 26, 2026). In March 2025, a Reddit user with the username u/tiktoktruthseeker posted to the r/FavoritedRanksDrama subreddit a 27-second clip from one of Shafiei’s TikTok livestreams, accompanied by a paragraph of critical commentary. The clip depicts Shafiei speaking directly to the camera, using language such as “Your mom was a bitch” and “When you were in school you got fucked in the ass.” The post, titled “PBA: Weaponizing SA, Homophobia, and Moms for his Angry Rant,” received 42 upvotes.

Shafiei sent Reddit a takedown notice and got a 512(h) unmasking subpoena. Reddit dishonored the takedown notice, taking the position that the post was fair use, and resisted the 512(h) subpoena. Thank you, Reddit, for standing up for your users!

The court agrees with Reddit’s fair use determination:

  • “Even though the Reddit user included an unaltered clip from Shafiei’s livestream, what matters is that the poster used it to express criticism of Shafiei’s rhetoric. As such, the Reddit user’s posting of the clip is a transformative fair use rather than infringement….where the post is best understood in the context of the video clip it directly criticizes, such use is justified.”
  • “even if the post includes personal attacks, disparagement, no matter how rude, may still be transformative.” [See my Memory Hole paper for more on the overlaps between copyright and disparagement.]
  • “the livestreamed video is primarily factual in that it is an informational presentation of Shafiei’s opinions.”
  • “the use of a 27-second clip from someone who livestreams up to 16 hours per day is quantitatively insignificant.”
  • “The Reddit user’s commentary within the post directly references statements made by Shafiei in the 27-second clip. Omitting this clip and instead referencing Shafiei’s livestream or providing a link to Shafiei’s account would be insufficient because it would not provide the full context for the user’s commentary.”
  • “Shafiei’s arguments that the post’s criticism may suppress demand by making TikTok users aware of his behavior is not a cognizable copyright harm.”
  • “It is also not clear that reproduction of a 27-second clip from a livestream has any value outside of the livestreamed context. The clip does not serve as a substitute for Shafiei’s daily presence on the platform for up to 16 hours at a time.”

Some Other Blog Posts on 512(h)