IP Law Daily Adult film producer denied discovery of ISP subscriber information to aid with infringement case
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Monday, October 28, 2019

Adult film producer denied discovery of ISP subscriber information to aid with infringement case

By Robert B. Barnett Jr., J.D.

Even if the court’s ruling made it harder to enforce copyrights against potential infringers, "the fact that the law lags behind technology is not an ill this Court can cure."

Strike 3, an adult website, was not entitled to expedited discovery to learn the names of the persons who allegedly infringed its copyright because its complaint failed to plead a viable copyright infringement claim against a series of John Does, the Camden, New Jersey federal district court has ruled. Even if the complaint could pass muster, the court said, the request would still have been denied because the dangers of a false identification and the prejudice it may cause outweighed Strike 3’s interest in obtaining expedited discovery. Less intrusive methods were available. Although the various courts considering the many complaints that Strike 3 has filed over the years have frequently granted the expedited discovery requests, this court said that it refused the request because of Strike 3’s growing reputation as a copyright troll and a previously incorrect assumption it had made that the name of the subscriber identified in Strike 3’s subpoenas was the same subscriber on the date of the alleged infringement (Strike 3 Holdings, LLC v. John Doe Subscriber Assigned IP Address 173.71.68.16, October 24, 2019, Schneider, J.).

Background. Strike 3 produces and distributes copyright-protected adult entertainment on its websites. It claims that it owns the most pirated adult content in the world. By its own estimate, between 200,000 and 400,00 illegal downloads occur every month. Strike 3 has filed numerous lawsuits (for example, 311 cases in New Jersey alone) in an attempt to stop the pirating and to protect its copyright. Its standard practice is to file suit against a series of John Does. The John Does are identified by IP addresses discovered by Strike 3’s hired investigator, who combs the BitTorrent network where the infringement typically occurs. Strike 3 then asks the court for an expedited discovery order that allows Strike 3 to take the IP address to the identified Internet Service Provider and ask for the subscriber’s name. In most cases, including previous instances before this judge, the requests have been granted. Strike 3 filed suit against four John Does, each with a different IP address, and it filed the motion for leave to conduct expedited discovery to learn the names of possible infringers.

Expedited discovery is appropriate if good cause exists, based on a totality of the circumstances. The mere fact that the information sought might be relevant is not determinative. Also, careful scrutiny is required where the request is made ex parte.

Reconsideration. Between the date when this court last permitted Strike 3 to expedite its discovery and the date that Strike 3 filed this motion for expedited discovery, the court had had a sort of awakening. It pointed to a "blistering opinion" by the federal district court in Washington, D.C., that accused Strike 3 of being a copyright troll that used technology to prey on low-hanging fruit and of flooding the courthouse with lawsuits "smacking of extortion." They were opinions that the judge in this case had come to believe might be true. This judge had also become savvier how about IP addresses work. It was in this altered framework that the court considered the most recent motion for expedited discovery

Complaint sufficiency. The most important reason, the court said, for denying the request for expedited discovery under these facts was that the copyright infringement claim could not survive a motion to dismiss. A plaintiff should not be able "to bootstrap discovery onto a futile complaint." Acknowledging that a majority of cases would probably allow the complaint to survive a motion to dismiss, this court sided with the substantial minority that say that a patent infringement complaint is insufficient if it merely alleges that the defendant is a subscriber of an IP address traced to infringing activity. Every other material aspect of the complaint was conclusory. There was no allegation, for example, that the John Doe subscriber downloaded any of Strike 3’s works. In the end, the court said, an allegation that a subscriber to an IP address that downloaded copyrighted works is guilty of copyright infringement is insufficient. A court cannot infer infringement from the mere possibility of conduct. Linking the subscriber to an IP that downloaded copyrighted is not enough in the absence of any proof that this subscriber did the downloading. Any number of people with access to the subscriber account using any number of devices could have downloaded the content. Strike 3 was required to allege something more to create a reasonable inference that a subscriber was an infringer. The court acknowledged that its ruling might mean that Strike 3 will be unable to identify the alleged copyright infringers. The court refused, however, to create a remedy for Strike 3 that did not exist under current law.

Totality of circumstances. Even if the court were to rule that the complaint would survive a motion to dismiss, it still would have denied the expedited request because the totality of circumstances favored a denial of the request. Its decision was based on the following factors: (1) Strike 3 based its complaint on unequivocal affirmative representations that it knew were not true, (2) Strike 3’s subpoenas were misleading and presented too great an opportunity for misidentification, (3) Strike 3’s argument that no other avenue existed for stopping infringement was wrong, (4) Strike 3’s lawsuits do not appear to be particularly effective, and (5) Strike 3 unfairly minimized the IP subscribers’ privacy interests.

Given that subscribers will be materially prejudiced if wrongfully named in a lawsuit, the balancing of interests favored denial of the request. As for the untrue representations in the complaint, Strike 3 alleged that the John Doe IP subscriber "downloaded, copied, and distributed" the copyrighted works. Strike 3, however, had no way of knowing if that was true. The subpoenas were misleading because the IP address used in the subpoena was not necessarily the IP address used when the works were infringed. This was an erroneous assumption, the court said, that it had made in previous expedited discovery requests. The subpoenas seek the name of the IP subscriber on a given date that Strike 3 has selected during a period when it knows infringement occurred with that IP address. The holder of the IP address on that date, however, may not have been the holder of the IP address when the infringement actually occurred. Given that IP addresses are dynamic and they change, Strike 3 had no way of knowing if the IP subscriber identified by the ISP pursuant to the subpoena had the IP address when the copyright infringement occurred. IP addresses get reassigned. In essence, it was a complete fishing expedition with a strong chance of misidentification.

In previous requests for expedited discovery, the court said, it had wrongly assumed that the subpoena sought the name of the subscriber who committed the infringement, when in fact Strike 3 did not know who had the IP address when the infringement occurred. As for other avenues of enforcement, the court said that Strike 3 could pursue rights under the Digital Millennium Copyright Act, which gives Strike 3 the right to notify ISP’s of the infringement of its works. ISPs are required to terminate subscribers who are repeat offenders. Strike 3’s reason for not pursuing this remedy were unconvincing. If the ISPs do not comply, Strike 3 has the right to sue them to enforce the right. Meanwhile, the court said, the substantial prejudice that could result from the release of a subscriber’s private information and possible false identification was significant.

As a result, the court denied the expedited discovery request.

This case is No. 1:18-cv-02674-JHR-JS.

Attorneys: John C. Atkin (Atkin Firm, LLC) for Strike 3 Holdings, LLC.

Companies: Strike 3 Holdings, LLC

MainStory: TopStory Copyright TechnologyInternet NewJerseyNews

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