An interesting case came out of the District Court for the District of Columbia in November — and the least interesting thing about it is that it involves pornography.
In Strike 3 Holdings, LLC v. John Doe, the issue was whether a copyright holder can unmask an infringing user’s identity by subpoenaing the user’s internet service provider (ISP). In this case, the copyright holder was Strike 3 — a producer of pornography — which had filed a motion for early discovery in order to learn the name of the infringer. John Doe is only known by his account number at the ISP.
In other cases I might diplomatically call a plaintiff something like a “prolific litigant” or “very active member of the bar” — but in this case, the euphemisms seem silly because the court begins the ruling by unambiguously describing the plaintiff as a copyright troll. The court goes on to describe the business and legal tactics used by Strike 3, which consist of filing a large number of infringement claims; settling with as many defendants as possible; and abandoning claims at the first sign of resistance.
The numbers confirmed (or perhaps informed) the judge’s suspicions: Strike 3 brought 1,849 cases since 2015, 40 of which were in the District of Columbia alone.
Judge Lamberth continued his dissection of the case by exposing the strategy that many pornographic content providers use in pursuing infringers: the terror of being exposed and named publicly in the complaint. The court noted that such a threat by itself is often all that is required to exact a settlement, whether the defendant was actually infringing or not. In fact, Judge Lamberth noted, the only defendant out of those 1,849 that didn’t settle actually litigated against Strike 3 (subject to the court granting anonymity to the defendant), and Strike 3 promptly dropped the case.
Identifying the Defendant
Strike 3’s fast track to enforcing its copyright involved seeking to publicly identify the infringers, but this court was not impressed with the way in which Strike 3 proposed to do so. In fact, the court took great pains to note that it is infamously difficult to find an actual internet user based solely on the identity of the ISP account holder or through geolocation. The court reasoned that in order to truly find the infringing party, it would be necessary to search all of the individual devices in the residence of the account holder — in addition to all the devices of neighbors who might have “shared” the defendant’s internet access. The court went on to list the myriad ways in which IP addresses can be compromised by virtual private networks and malware programs.
Although the D.C. Circuit had ruled that an infringing IP in D.C. justified a good-faith belief that the court had personal jurisdiction over the defendant, “the Court must also balance Strike 3’s need for discovery with a potentially-noninfringing defendant’s right to be anonymous.” The court noted that only the Second Circuit has articulated this balance, factoring in whether plaintiff makes an initial claim of actionable harm; whether the discovery request is sufficiently specific; whether there are alternative means to obtain the subpoenaed information; the need for the subpoenaed information in order to bring the lawsuit; and (here’s the kicker) “the objecting party’s privacy expectation.”
Right to Privacy
Even though defendant in this case had not appeared, let alone objected to the subpoena, the D.C. Court found persuasive the Second Circuit analysis: “placing great weight on defendant’s privacy expectation, the Court will deny Strike 3’s motion for early discovery…. Strike 3 ‘s request lacks the type of specificity the Second Circuit’s test requires: that the request will identify a copyright infringer who can be sued.”
Perhaps by “specificity,” the court meant “accuracy.” In any event, this decision was a good read, with its folksy language and use of the phrase “not for nothing,” but something didn’t sit right with me. For one, the judge seems to make a distinction between “run-of-the-mill” pornography and “particularly prurient pornography” (Judge Lamberth’s words, not mine). Which suggests a different outcome if it were run of the mill pornography. And what does “run of the mill” mean, anyway?
His reasoning seems to be that the more prurient the pornography, the greater the embarrassment to someone who is falsely accused of infringing — which goes directly to Strike 3’s modus operandi. However, this appears to be a subjective determination, and I wonder whether the Court would have spent as much energy defending the downloading infringer’s rights if the work that were infringed were less raunchy.
I agree with the outcome of this case, but not necessarily the journey the court took to get there. I found it curious how the judge was so struck by the quantity of cases that this plaintiff had brought, never questioning whether they had a real copyright issue or valid rights to bring this action. He just found that the business model of trying to embarrass defendants into submission was a reason to deny copyright protection.
