Court Blasts “Copyright Troll” for Treating Courts “as an ATM”–Strike 3 v. Doe
Strike 3 produces pornography. The court calls it a “copyright troll.” It has filed nearly 2,000 copyright infringement cases in the past 13 months. With that many cases, it’s bound to run into a skeptical judge, and whoa, did Judge Lamberth of the DC federal courts deliver it a stinging benchslap. After suing an IP address, Strike 3 asked the court to issue a subpoena to the Internet access provider to unmask the subscriber. It’s fair to say this request doesn’t go well. This excoriating opinion correctly identifies, and then eviscerates, many flaws in Strike 3’s litigation strategy.
Suing an IP Address Associated with a BitTorrent User. The court says this approach is “famously flawed” because of its many possible errors in unique identification, including “virtual private networks and onion routing spoof IP addresses (for good and ill); routers and other devices are unsecured; malware cracks passwords and opens backdoors; multiple people (family, roommates, guests, neighbors, etc.) share the same IP address; a geolocation service might randomly assign addresses to some general location if it cannot more specifically identify another….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.”
Fleeing Against Opposition. The court describes a copyright troll’s litigation playbook. They “drop cases at the first sign of resistance, preying on low-hanging fruit and staying one step ahead of any coordinated defense. 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. 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.”
The court runs through the litigation statistics in the DC court. Of the 40 cases Strike 3 has brought there, “Twenty-two have been voluntarily dismissed, 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 prior to the Rule 26(f) conference (identical in every case except for the particular ISP to be served—Comcast, Verizon, of RCN). 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 defendant’s continued anonymity. Nothing happens for a few weeks, and then Strike 3 voluntarily dismisses the suit….The eighteen pending cases are no different: in twelve, the judge recently granted the early discovery motion and Strike 3 is waiting for the ISP to respond; in five, Strike 3’s early discovery motion remains pending; and in one, Strike 3 hasn’t yet filed its discovery motion. This sounds crazy, but its [sic] par for the copyright-trolling course.”
Weighing the Prima Facie Case. “Strike 3’s alleged ownership of an infringed copyright sets forth a prima facie claim. So too is the requested information necessary to advance Strike 3’s claim, just as subpoenaing the ISP is necessary to get the information. [However,] Strike 3 could not withstand a 12(b)(6) motion in this case without resorting to far more intensive discovery machinations sufficiently establishing defendant did the infringing—examining physical evidence (at least the computers, smartphones, and tablets of anyone in the owner’s house, as well as any neighbor or houseguest who shared the Internet), and perhaps even interrogatories, document requests, or depositions. Strike 3’s requested subpoena thus will not—and may never—identify a defendant who could be sued.”
Defendant’s Privacy Risks. “Strike 3 fails to give the Court adequate confidence this defendant actually did the infringing. Given this uncertainty, Strike 3 cannot overcome defendant’s weighty privacy expectation. Imagine having your name and reputation publicly—and permanently —connected to websites like Tushy 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 risks 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. Defendant may not be entitled to the same presumption of innocence a criminal defendant enjoys, but the Court remains uncomfortable publicly presupposing defendant partook in particularly prurient pornography given defendant’s tenuous connection to the infringement.”
A Protective Order Isn’t Good Enough. Making defendants contest the discovery request, even under a protective order, “hardly seems fair. That drags defendant into court and foists on them the unenviable burden of hiring a lawyer or defending their reputation pro se, all before they’ve even been served. That’s not how our system of litigation is supposed to work.”
Pornography Trolling is Especially Problematic. “An honest copyright holder might balk at this result, misunderstanding it to slash congressionally endowed defenses against increasingly creative and covert cyberpirates. But the typical case does not involve pornography, nor is this even run-of-the-mill porn. By extension, two factors limit today’s holding. First is this content’s aberrantly salacious nature. Second is the legion pitfalls associated with Strike 3’s tracking and identification of infringers. Given these high stakes—unlikely to appear in more typical cases—the Court will not accept the risk of misidentification. Maybe someday someone will show the Court a method to identify infringers with sufficiently less risk of false accusations. But because Strike 3 fails to do so here, it cannot subpoena defendant’s ISP.”
In a footnote, the judge adds: “The Court notes ‘it is unsettled in many circuits’—including this one—’whether pornography is in fact entitled to protection against copyright infringement.'” This topic gets raised by academics from time to time, but is there any real dispute that pornography qualifies for copyright protection under copyright’s non-discrimination principle?
A Final Benchslap. “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 a high-tech shakedown. This Court declines.”
Note the judge made this ruling on an ex parte request. No defense counsel urged this result, As the stats show, judges routinely grant ex parte discovery requests in copyright cases because they don’t hear any counternarratives. Fortunately, Judge Lamberth didn’t need to hear the other side to reach the right result.
We rarely see judicial opinions with such pejorative language, including “copyright troll,” “smacking of extortion,” and “high-tech shakedown.” And this tweetable zinger: “It treats this Court not as a citadel of justice, but as an ATM.” Strong stuff, but perhaps deserved.
Unfortunately, so long as Strike 3 continues to proceed in other cases on an ex parte basis, most other judges will never see Judge Lamberth’s opinion and will have to independently come to the same conclusion–which many judges won’t do. What Judge Lamberth should have done is require Strike 3 to attach this opinion to all future copyright infringement filings so that other judges will actually see the opinion.
For knowing and calling out a troll when he sees it, I’m awarding Judge Lamberth the honorary Technology & Marketing Law Blog judge of the day honors.
Case citation: Strike 3 Holdings, LLC v. Doe, 2018 WL 6027046 (D.D.C. Nov. 16, 2018)