512(h) Doesn’t Preempt Doe Unmasking Lawsuits–Strike 3 v. Doe

This is my second Strike 3 blog post this week. I imagine this won’t be the last.

In this case, a Doe defendant sought to quash the unmasking subpoena submitted to his/her IAP. The defendant argued that the unmasking subpoena was part of Strike 3’s sue-and-withdraw campaign, but the court says the “burden” is borne only by the IAP having to comply with the subpoena, not the defendant. The defendant argued that copyright doesn’t protect obscenity, but the court pointed to the Copyright Office’s registration of the work being litigated, plus the lack of evidence that the video was obscene (as opposed to just pornographic). The court says that the IP address may not be a reliable authenticator of the defendant’s conduct, but that can be proved at trial. In contrast, in the prior Strike 3 case I blogged, the judge said that it would be too late to correct any misidentification once the unmasking had occurred—a better result that what this court concludes.

The most interesting part of the ruling relates to the defendant’s argument that Section 512(h) preempts unmasking lawsuits against Doe defendants. It’s a creative argument, but not a meritorious one. The court says: “even assuming the DMCA applied here, the statute does not prohibit copyright owners from requesting such a subpoena through other mechanisms such as Rule 45.” I guess it was worth a try.

Unlike the prior case I blogged about , the defendant’s policy arguments fall on deaf ears:

Defendant also implores the Court to stop what it characterizes as the “early stages of copyright troll litigation.” Defendant accuses Plaintiff of having no real intention to litigate, and contends Plaintiff filed these lawsuits as a way to obtain the identities of the alleged infringers at the expense of judicial resources and in circumvention of the avenues Congress sought to provide to similar plaintiff’s. The record before the Court does not support Defendant’s accusations. While the vast majority of Plaintiff’s lawsuits do appear to end in voluntary dismissal after Plaintiff receives the Court’s permission to serve a third-party subpoena on a defendant’s ISP, Plaintiff has proceeded to file an amended complaint in at least one other lawsuit before this Court, indicating that Plaintiff is ready and willing to litigate the cases it files. Additionally, there is no evidence that Plaintiff has engaged in any of the abusive practices used by similar plaintiff’s [sic], such as exploiting Defendant’s identifying information as leverage for settlement or filing one lawsuit against numerous John Does as a way to circumvent filing fees, Because there is no evidence to support Defendant’s conclusory claims that Plaintiff is engaging in copyright troll litigation tactics in the instant lawsuit, and because the subpoena was not granted in circumvention of the DMCA, the Court denies Defendant’s motion to quash on these grounds.

The judge’s only concession to the defendant is that he/she will be referenced in public filings as “John Doe subscriber assigned IP address 69.204.6.161,”  not by name. However, Strike 3 will get the actual name, and it seems likely that a settlement will negate any further in-court proceedings. Bonne chance, IP address 69.204.6.161!

Case citation: Strike 3 Holdings v. John Doe subscriber assigned IP address 69.204.6.161, 2018 WL 6166873 (W.D. N.Y. Nov. 26, 2018)