Strike 3 v. John Doe is a copyright infringement case that began in 2018 in the District Court of the District of Columbia. It concerned infringement of Strike 3’s intellectual property taking place over the BitTorrent file-sharing network. Using geolocation technology, Strike 3 identified the IP addresses of the infringers and petitioned for a subpoena to identify them. Read our first article on the subject here (because unlike the court, we do not assume familiarity with the previous article).
Although such discovery was necessary in order to gain the identity of the John Doe defendants, the court exercised its discretion in saying it would not allow the subpoena because the IP address alone might not identify the actual infringer. Critically, the judge presaged the embarrassment of being mistakenly associated with Strike 3’s brand of extreme and “particularly prurient pornography,” in his words. The court said certain types of pornography would be so embarrassing that mere association with the allegations (and titles of the allegedly infringed works) would violate the defendants’ privacy concerns.
The judge also indicated that Strike 3 was, in his opinion, a copyright troll because of the thousands of cases that they have filed nationwide.
In reviewing the case, the DC circuit appointed an amicus to represent and defend the ruling from the district court, since no defendants were named. (After all, the whole case was over the issue of anonymity.)
Although circuit courts are generally hesitant to interfere with the discretion and findings of the district courts, in this case, the DC panel reversed the D.C. District Court.
The D.C. Circuit Court found that the district judge improperly reached his conclusion based on the content of the plaintiff’s work, and based on the number of cases brought outside of this case and/or status as a “copyright troll.” Judges are certainly allowed to take judicial notice of other cases brought by the parties elsewhere, but that had no bearing on the actual merits of this particular copyright infringement case.
As we mentioned in “Judges Are Human, Too,” the judge has an obligation to treat all the allegations in the complaint as true. In this case, the district court judge did not do that. Instead, he not only denied the subpoena that would allow Strike 3 to identify an actual defendant, but he dismissed the complaint — because if you can’t name the defendant, you can’t bring a lawsuit.
The circuit court panel said if the plaintiff had no realistic chance of winning, then denial of the subpoena would have made sense. That wasn’t the case here. The plaintiff used technology to ascertain the geographic location of where each IP address is, and they were all within the district in which they brought the case. Whether the registered owner of that computer is necessarily the defendant, the panel said, could be proven at a later time.
As distasteful as Strike 3’s content is — the dark alley of intellectual property to many practitioners — it’s a genuine First Amendment issue being tested in this case. We may not like the content of what this plaintiff is trying to enforce, but that’s not up to a judge to decide. There’s no reason for copyright protection to be minimized just because someone doesn’t like the content.
