IP Law Daily Adult film producer’s right to discover identity of Comcast customer outweigh customer’s privacy rights
Wednesday, July 15, 2020

Adult film producer’s right to discover identity of Comcast customer outweigh customer’s privacy rights

By Randall Holbrook, J.D.

District court should not have refused to issue subpoena to obtain identity of ISP’s customer whose assigned IP address was allegedly used to pirate pornographic films in violation of copyright law.

The federal district court in Washington, D.C., abused its discretion by holding that the privacy expectations of an internet service provider’s customer outweighed copyright holder Strike 3 Holdings, LLC’s interest in enforcing its rights, the U.S. Court of Appeals for the District of Columbia has ruled. The district court assigned improper weight to what it viewed as the "aberrantly salacious nature" of Strike 3’s adult films, erroneously concluded that Strike 3 could not state a plausible claim for infringement with certainty against the IP address subscriber, and improperly drew unsupported, negative inferences against Strike 3 regarding its litigation tactics (Strike 3 Holdings, LLC v. Doe, July 14, 2020, Rao, N.).

Background. Strike 3 distributes pornographic films and engages in litigation to prevent piracy of those films. In this case, a forensic investigator working on behalf of Strike 3 had allegedly traced distribution of some of Strike 3’s pornographic films to a particular IP address. The address was owned by Comcast. The investigator was able to place the subscriber within the District of Columbia, but the only way for Strike 3 to obtain the identity of the person using that IP address would be to subpoena Comcast for its customer’s information. Strike 3 filed a copyright infringement suit in federal district court against a John Doe defendant and a Rule 26(d)(1) motion for leave to subpoena the non-party internet service provider and obtain the identity of the John Doe defendant. The district court denied the motion and dismissed the case for inability to identify a defendant.

Content of the films. The trial court had placed great weight on the pornographic content of the material in question, finding that the unknown defendant had a much weightier than usual privacy interest in not being associated with such "particularly prurient pornography." This was abuse of discretion because basic copyright principles establish that a plaintiff’s ability to defend its copyrights cannot turn on a court’s subjective view of the copyrighted material. The court held that the content of a copyrighted work is per se irrelevant to a Rule 26(d)(1) motion seeking discovery to identify an anonymous infringer.

Plausible claim of infringement. The trial court also abused its discretion by concluding that the requested subpoena would not result in locating a defendant who could be sued. Although there were potential circumstances under which the subscriber would not be liable for the infringement, such as if the subscriber were a library, coffee shop, or other point of shared internet access, the possibility that the subscriber may not be the infringer was not sufficient reason to prevent Strike 3 from litigating its case.

Litigation tactics. Finally, the trial court abused its discretion by relying on Strike 3’s history of other copyright suits, describing Strike 3 as a "copyright troll," and announcing that a different result might be obtained by an "honest copyright holder." Strike 3 claimed it owned some of the most pirated material on the internet and had filed nearly 2,000 copyright suits around the country in the year leading up to this case. All of them had been either settled or abandoned, with none pursued to final judgment on the merits. A court cannot infer that a plaintiff lacks a legitimate motive in pursuing discovery based solely on the plaintiff’s litigation volume and case history. When a plaintiff alleges that it is the victim of copyright infringement on a massive scale, the fact that it has filed a significant number of lawsuits is not a valid basis on which to impute an improper purpose.

This case is No. 18-7188.

Attorneys: Lincoln Dee Bandlow (Law Offices of Lincoln Bandlow, P.C.) for Strike 3 Holdings, LLC.

Companies: Strike 3 Holdings, LLC

MainStory: TopStory Copyright TechnologyInternet DistrictofColumbiaNews GCNNews

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