Its modus operandi is familiar – harvest allegedly infringing IP addresses from BitTorrent swarms, obtain the identities of the people behind the ISP accounts, then chase them down for a cash settlement.
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While it’s unknown how many people have settled with the company for hundreds to thousands of dollars, the alleged ‘John Doe’ infringer featuring in a case filed in the District of Columbia seems destined not to join their ranks.
In common with similar cases, Strike 3 Holdings asked the Court to help unmask the identity of an alleged pirate of the company’s porn, who used a Comcast connection to do the dirty deed. However, a scathing and entertaining memorandum opinion from Judge Royce C. Lamberth explains why that is not going to happen.
The Judge begins by speaking of Strike 3 in disparaging terms, noting that the company’s geolocation technology is “famously flawed”, adding that it simply cannot identify an alleged infringer.
“Simply put, inferring the person who pays the cable bill illegally downloaded a specific file is even less trustworthy than inferring they watched a specific TV show,” Judge Lamberth writes.
The Judge notes that ISPs have been forced to unmask alleged infringers in the past but says this can make the currently innocent defendant visible in a Google search, associated with the websites “Vixen, Blacked, Tushy, and Blacked Raw” through which Strike 3’s DVDs are distributed.
“The first two [website titles] are awkward enough, but the latter two cater to even more singular tastes,” he says.
“Imagine having your name and reputation publicly – and permanently – connected to websites like Tusky and Blacked Raw. (Google them at your own risk). How would an improperly accused defendant’s spouse react? His (or her) boss? The head of the local neighborhood watch?
“The risk of a false accusation are real; the consequences are hard to overstate and even harder to undo. And Strike 3’s flawed identification method cannot bear such great weight.”
Going on to criticize Strike 3 for filing 1,849 cases in the past thirteen months, including 40 in his district, Judge Lamberth says that such serial litigants prey on low-hanging fruit then run away at the first sign of resistance.
“They don’t seem to care about whether defendant actually did the infringing, or about developing the law. If a Billy Goat Gruff moves to confront a copyright troll in court, the troll cuts and runs back under its bridge,” he writes.
“Perhaps the trolls fear a court disrupting their rinse-wash-and-repeat approach: file a deluge of complaints, ask the court to compel disclosure of the account holders; settle as many claims as possible; abandon the rest.”
Unfortunately for Strike 3, Judge Lamberth doesn’t intend to play ball. He explains that Strike 3’s call for discovery does not outweigh the potentially non-infringing defendant’s right to be anonymous, while denying Strike 3’s ex parte motion to subpoena Comcast for the defendant’s identity and dismissing the case without prejudice.
According to the Judge, Strike 3 has little chance of identifying a defendant who can be sued without resorting to aggressive discovery, including examinations of all computers, phones, and tablets belonging to the owner of the home and anyone who used its Internet connection.
In further detailing why he denied Strike 3’s request, the Judge notes that of the forty cases filed in his district, none have reached the Court of Appeals. A total of 22 were voluntarily dismissed, with all but one following the same formula.
“Strike 3 files a complaint (identical in every case except for the infringing IP address). A few weeks later, Strike 3 files a motion to subpoena the anonymous defendant’s ISP,” the Judge writes.
“Satisfied by Strike 3’s showing of likely personal jurisdiction, the court grants the motion, usually providing at least twenty days for the defendant to move to quash the subpoena and sometimes providing for the defendant’s continued anonymity. Nothing happens for a few weeks, and then Strike 3 voluntarily dismisses the suit.”
In the one case that bucked the trend, a defendant was allowed by the court to proceed anonymously – but then Strike 3 dropped the case.
In his conclusion, Judge Lamberth takes one final swipe at Strike 3, describing the troll outfit in some of the most explicit terms ever used in court and leaving little to the imagination.
“Armed with hundreds of cut-and-pasted complaints and boilerplate discovery motions, Strike 3 floods this courthouse (and others around the country) with lawsuits smacking of extortion. It treats this Court not as a citadel of justice, but as an ATM.
“Its feigned desire for legal process masks what it really seeks: for the Court to oversee this high-tech shakedown. This Court declines,” the Judge concludes.
The full memorandum opinion can be found here (pdf)