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Invasion of the Copyright Trolls: What to Do If You Have Been Sued by Strike 3 Holdings or Malibu Media over Alleged BitTorrent Downloads

Over 2700 additional copyright infringement lawsuits were filed in U.S. federal courts in 2018 compared to 2017. That increase was due in large part to cases that pornography studios, Strike 3 Holdings and Malibu Media, filed against John Doe internet downloaders alleging illegal downloading of the studios’ videos over file-sharing services like BitTorrent.

BitTorrent is a peer-to-peer file-sharing protocol that allows users to exchange large amounts of data in short periods of time. Unlike other download methods, BitTorrent maximizes transfer speed by gathering pieces of the file users want and downloading these pieces simultaneously from people who already have them. Moreover, once a user downloads the pieces, which together combine to create the complete video, the protocol shares them with other users downloading the same content. Thereby, users who download videos using BitTorrent are also inadvertently sharing and distributing that content with other users.

Strike 3 and Malibu Media use third party forensic internet investigators who establish direct TCP/IP connections with a defendant’s Internet Protocol (IP) address in order to download from the defendant one or more pieces of the digital media files containing the studio’s motion pictures. After that, the studios file suit against the IP address and utilize subpoenas to force internet service providers, such as Comcast, to furnish a list of subscribers that use/pay for the identified IP address and then send demand letters to the identified defendant(s) threatening to name them personally in a lawsuit unless they pay a settlement That settlement is typically several thousands to tens of thousands of dollars depending on the volume of alleged infringement. Usually, each of these copyright infringement matters filed against an IP address are privately settled without being litigated on the merits given the sensitive nature of the allegations and the desire of private individuals not to be named in a pornography infringement lawsuit.

Because these plaintiffs have accounted for a sizable portion of all copyright cases filed in the United States last year, Judges have referred to these studio plaintiffs as “copyright trolls” —owners of valid copyrights who bring cookie-cutter infringement actions “not to be made whole, but rather as a primary or supplemental revenue stream.” Some courts have issued sharply critical rulings that question the use of methods such as geolocating IP addresses or subpoenaing internet service providers (ISPs) based upon alleged downloading using an IP address. These outspoken rulings are few and far in between but nevertheless offer hope for defendants who have the wherewithal and gumption to fight back.

As a reminder, to sue for copyright infringement, the plaintiff party bringing the suit must establish that he or she is:

  • The owner of the applicable right of copyright;

  • There is a substantial similarity between the works in questions;

  • The defendant had access to the plaintiff’s work; and,

  • The defendant made an unauthorized use or copy of plaintiff’s copyrightable expression.

It is also possible to bring a claim for vicarious liability or contributory infringement by third parties under the Copyright Act.

Cobbler Nevada, LLC v. Gonzales, 901 F.3d 1142 (9th Cir. 2018) (filed Aug. 27, 2018)

In the Ninth Circuit Court of Appeals, the court upheld a federal district judge’s dismissal of a case where Cobbler Nevada, the owner of the rights to Adam Sandler’s “The Cobbler,” alleged unauthorized downloading and distribution of the film through peer-to-peer BitTorrent networks against the unknown holder of an IP address identified as “John Doe.”

The panel held that Cobbler’s bare allegation that the defendant was the registered subscriber of an Internet Protocol address associated with infringing activity was insufficient to state a claim for direct or contributory copyright infringement. Cobbler filed suit, subpoenaed Comcast, obtained the IP addresses that were registered to Gonzalez, an operator of an adult foster care home, and amended its complaint to name him as the sole direct infringer, or in the alternative, the contributor to another party’s infringement by failing to secure his internet connection.

The court found the mere fact that Gonzalez was the registered subscriber, without anything more, did not create a reasonable inference that was the infringer because simply identifying the IP subscriber solves only part of the puzzle when multiple computer devices and individuals connect to and utilize an IP address. Additionally, there could be unknown third parties who piggyback on unsecured wireless connections.

The court also held that allegations of contributory infringement could not survive without alleging intentional encouragement or inducement of infringement, because, in their absence, an individual’s failure to take affirmative steps to police his internet connection is insufficient to state a claim for contributory infringement.

The court noted that identifying an infringer is even more difficult in situations where numerous people live in and visit a facility that uses the same internet service. And with contributory infringement claims, parties suing must allege that the defendant is the “one, who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another.” The court was wary to create an affirmative duty for private internet subscribers to actively monitor their service for infringement, which would expose them to a large risk of liability.

The appellate court also affirmed the lower court’s award of attorney’s fees to the defendant. That fee award was upheld because it focused on the unreasonable conduct of plaintiff instead of a “one-size-fits-all disapproval of other BitTorrent suits.” This award of fees should encourage other-improperly-named IP subscriber defendants (and their attorneys) to defend their innocence rather than pay to settle the case to avoid litigation.

Strike 3 Holdings, LLC v. Doe, 351 F. Supp. 3d 160 (D.D.C. 2018)

Strike 3 Holdings brought copyright infringement claims against an unknown IP address subscriber in the District of Columbia, but the court denied Strike 3’s motion to subpoena the defendant’s ISP to discover the subscriber’s identity. The court dismissed the case without prejudice.

The court found that the discovery request did not satisfy the balancing test: balancing the plaintiff’s need for discovery with a potentially innocent defendant’s right to be anonymous, where interests of privacy may call for a measure of extra protection.

Strike 3 tried to argue for a protective order that would allow the defendant to anonymously challenge the subpoena. But the court found that method unfair since it dragged defendant into court and put the burden on him of hiring a lawyer or defending his reputation on his own, all before he had even been served with a legal complaint.

Judge Lamberth explicitly referred to Strike 3 as a “copyright troll” and attacked Strike 3’s reasoning of identifying an infringer based on an IP address due to virtual private networks and onion routing, spoof IP addresses, the insecurity of routers and other devices, malware cracks, passwords and open backdoors, multiple people using the same address, and the fact that a geolocation service might randomly assign addresses to some general location if it could not more specifically identify another address. The court also acknowledged how IP-address billpayers would be forced into settling out of fear of having their name turn up in a google search next to pornography titles and studios.

The D.C. Judge’s strong use of disapproving language conveys a message to owners of copyright material that they should not try to replicate this type of potentially frivolous litigation. Unfortunately for IP-address billpayers, not all federal judges will deny subpoena motions on the same basis and will have to come to their own conclusions about whether to allow pre-service subpoenas.

Strike 3 Holdings, LLC v. Doe, No. 18CV0449ENVJO, 2019 WL 2022452, at *1 (E.D.N.Y. Mar. 21, 2019)

Just like hundreds of other cases in the Eastern District of New York, Strike 3 filed a copyright infringement suit and sought leave to engage in expedited discovery to subpoena the internet service provider associated with the identified infringing IP address. The court denied the request. The court held that Strike 3 did not establish good cause required for expedited discovery for several reasons, acknowledging that granting the request would allow Strike 3 to coerce the identified subscribers into paying a lot of money to settle claims that may be frivolous in order to avoid litigation or public embarrassment. Strike 3’s promise to be ethical with the information was not enough since there was no realistic prospect of meaningful judicial oversight of that promise.

The court determined that good cause is not shown where the plaintiff would use expedited discovery to acquire information that would not actually be used under judicial supervision to resolve the case on the merits. The fact that in over a third of its resolved cases, Strike 3 could not demonstrate that the named defendant was the alleged infringer undermined the proposition that good cause existed to allow expedited discovery. The Judge also concludes that allowing discovery of the information would not suffice to deter any future copyright violations. The court bluntly stated “attacking the problem [of insufficient copyright law protection] by asking judges in hundreds of cases in just one district (and presumably thousands across the country) to consider the same motion and achieve a patchwork of results is plainly inefficient.” This case offers more helpful language innocent internet service provider billpayers who are accused of copyright infringement can use to fight back.

Strike 3 Holdings, LLC v. Doe, Case No. 19CV20761UU

Lastly, a judge in the Southern District of Florida recently denied Strike 3’s motion for leave to serve a third-party subpoena on Cogeco Communications, an ISP, to obtain information identifying the subscriber associated with a certain IP address.

The court held that Strike 3 could not show how geolocation software could establish the identity of the defendant, how the defendant could even be found in the Southern District of Florida, or why the case should not be dismissed for improper venue. There was nothing that specifically linked the IP address location to the person downloading and viewing the videos and established whether that person lived in the Southern District of Florida for the court to have jurisdiction to hear the case. The infringing activity could have taken place in a public network in a library or coffee shop conducted by someone who lives and resides far outside of the district because he is stopping in, traveling, or visiting. Therefore, good cause was not established to obtain leave to serve a subpoena or to prevent the court from dismissing the case for improper venue.

This decision serves as an additional favorable outcome for account holders of internet connections, particularly because the court even dismissed the case in its entirety for improper venue in order to prevent any further waste of the defendant’s and the court’s time and money.

While the above cases present favorable outcomes for subscriber defendants, federal judges in New Jersey and Pennsylvania are nevertheless routinely granting similar motions for pre-discovery subpoenas on internet service providers in copyright infringement cases brought by Strike 3 and Malibu.

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About this Author

Gene Markin Attorney Stark & Stark Law Firm
Shareholder

Gene Markin is a Shareholder in Stark & Stark’s Complex Commercial, Intellectual Property, and Cannabis Litigation Groups where he concentrates his practice on complex litigation matters involving copyright protection and infringement, trademark and trade dress infringement and enforcement, trade secret litigation, false advertising, domain name disputes, unfair competition, class actions, fraud and consumer fraud, shareholder and partner disputes, breach of contract, cannabis business disputes, cannabis intellectual property matters, cannabis insurance coverage...

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