By: Daniel Eum

As discussed in my previous blog, the rapid onset of the COVID-19 pandemic forced churches across the United States to transition their worship services online, often through livestreaming platforms. Even after in-person gatherings resumed, many congregations continued to livestream services. Studies show that by 2024, 91% of churches were livestreaming their services. This underscores how digital worship has become a common, if not fundamental, feature of modern religious exercise. Yet, churches that livestream services may be subject to copyright liability. 

Religious Freedom Restoration Act and the Limits of “Substantial Burden”

This tension invites closer attention to the Religious Freedom Restoration Act (“RFRA”), whose operative provision 42 U.S.C. § 2000bb-1 provides that the federal government “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” unless the government demonstrates that the burden “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” Although the City of Boerne v. Flores decision limited RFRA’s application to the federal government, federal copyright enforcement remains within that scope. 

Courts, however, have historically set a high bar for what constitutes a “substantial burden.” In Worldwide Church of God v. Philadelphia Church of God, Inc., the Ninth Circuit held that requiring a religious organization to obtain permission and pay licensing fees for copyrighted material used in worship did not violate RFRA, reasoning that such obligations amount to mere inconvenience rather than a meaningful constraint on religious exercise. That precedent suggests that routine copyright compliance—such as licensing requirements tied to livestreamed services—will not trigger RFRA protections. Nonetheless, this analysis may be incomplete in the post-pandemic context, where livestreaming is no longer incidental but central to how many congregations practice their faith.

Reconsidering Religious Exercise in the Age of Digital Worship

The rapid normalization of livestreamed worship raises a quieter but important question: whether existing copyright rules, when applied to digital services, impose the kind of “substantial burden” contemplated by RFRA. Part of that inquiry turns on how religious exercise itself is understood. Biblical sources indicate that religious worship depends on the participants’ intent rather than on a particular building. For example, Matthew 18:20 states, “For where two or three gather in my name, there am I with them.” Pastoral commentators read this passage to mean that a particular place, time, or form is not essential, but rather the gathering itself in Jesus’s name. Likewise, Acts 7:48 declares that “the Most High does not live in houses made by human hands,” underscoring that, in the biblical text, God is not confined to man-made structures, a point commentators emphasize in warning against limiting God’s presence to a single physical location or building. Against that backdrop, livestreamed services may be understood less as a departure from traditional worship and more as a continuation of a longstanding principle that religious exercise can adapt to circumstances without losing its essence.

This framing also informs how courts might approach the Copyright Act’s religious service exemption in 17 U.S.C. § 110(3). This provision is meant to prevent copyright law from interfering with worship practices, but its reference to services “at a place of worship” assumes in-person gatherings and does not translate well to digital participation. When congregants join a livestreamed service, they are often engaging in the same liturgy, music, and communal elements as those physically present, suggesting that the activity may be better understood as part of a single religious assembly rather than a separate public performance. Even so, existing precedent indicates that falling outside of § 110(3) would not automatically establish a substantial burden under the RFRA. In Worldwide Church of God, the court held that licensing requirements imposed only an incidental burden on religious exercise, reinforcing the view that routine copyright compliance is unlikely to trigger heightened protection.

At the same time, digital worship environments introduce features that were not present in earlier cases. Many churches livestream services on platforms such as YouTube that rely on automated enforcement systems, which can interrupt or block content in real time. In some circumstances, these mechanisms may affect a congregation’s ability to participate in a service as it occurs, raising questions about whether the burden remains merely incidental. Whether courts would treat such disruptions as “substantial” under RFRA remains uncertain. What is clear is that the combination of widespread online worship and a statutory framework designed for in-person services creates misalignment. If livestreamed services are now a core aspect of religious exercise, then requiring churches to comply with systems that can block or interrupt services in real time begins to look like the kind of substantial burden RFRA was meant to prevent.