Case Document 5 Filed 11/16/18 Page 1 of 9

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

 


STRIKE 3 HOLDINGS, LLC, 

Plaintiff, 


v. Civil Case No. 18-1425

JOHN DOE subscriber assigned 
IP address 73.180.154.14, 

Defendant. 


MEMORANDUM OPINION

 

Strike 3 Holdings, LLC produces ?award winning, Critically acclaimed adult motion
pictures.? Compl. 11 2. Or, as' the Miami Herald describes, it is ?[t]he Steven Spielberg of porn.?
Adiel Kaplan, The Steven Spielberg of Porn Sues to Make Floridians Stop Pirating His Raunchy
Videos, Miami Herald (July 12, 2018, 4:48 PM), 
article214634930.html.

Strike 3 is also a copyright troll. Its swarms of lawyers hound people who allegedly
watch their content through Bittorrent, an online service enabling anonymous users to share
videos despite their copyright protection. Since Bittorrent masks users? identities, Strike 3 can
only identify an infringing Internet protocol (IP) address, using geolocation technology to trace
that address to a jurisdiction. This method is famously ?awed: 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 speci?cally identify another. See, e. g, James Temple, Lawsuit

Case Document 5 Filed 11/16/18 Page 2 of 9

Says Grandma Illegally Downloaded Porn, S.F. Chron. (July 15, 2011, 4:00 AM), 


23 54720.php. Simply put, inferring the person who pays the cable bill illegally downloaded a
speci?c ?le is even less trustworthy than inferring they watched a speci?c TV Show. But in
many cases, the method is enough to force the Internet service provider (ISP) to unmask the 1P
address?s subscriber. And once the ISP outs the subscriber, permitting them to be served as the
defendant, any future Google search of their name will turn-up associations with the websites
Vixen, Blacked, ushy, and Blacked Raw. The ?rst two are awkward enough, but the latter two
cater to even more singular tastes.

Little wonder so many defendants settle. indeed, the copyright success rate comes
not from the Copyright Act, but from the law of large numbers. According to PACER, over the
past thirteen months, Strike 3 has ?led 1849 cases just like this one in courts across the
country?forty in this district following the copyright trolls who together
consumed 58% of the federal copyright docket in 2015. These serial litigants drop cases at the
?rst 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: ?le a deluge of complaints; ask the court to compel
disclosure of the account holders; settle as many claims as possible; abandon the rest. See
Matthew Sag Jake Haskell, Defense Against the Dark Arts of Copyright Trolling, 103 Iowa L.

Rev. 571, 575-80 (2018); see also infra text accompanying notes 1?4.

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Here, that approach led Strike 3 astray. Because Strike 3?s need for discovery does not
outweigh defendant?s privacy expectation, the Court will deny Strike 3?s ex parte motion to
subpoena defendant?s ISP to discover defendant?s identity prior to the 26(f) conference. That
sunders Strike 3?s entire case, since a failure to identify defendant makes effectuating service
impossible. So the Court will dismiss this case without prejudice.

I. Strike 3 cannot subpoena defendant?s ISP because its discovery request lacks suf?cient
speci?city and does not overcome defendant?s privacy expectation.

Strike 3?s request for early diSCOvery falls short of Rule 26?s requirements. A plaintiff
can only discover an unknown defendant?s identity through a court order under Rule 
But. the rule cabins a diStrict court?s discretion to order discovery to Circumstances Where a

plaintiff shows good cause. See Fed. R. Civ. And to show good cause, the DC.
Circuit requires establishing likely personal jurisdiction. AF Holdings, LLC Does 1-1058, 752
F.3d 990, 995 (DC. Cir. 2014).- Here, Strike 3 clears that hurdle. See id. at 996 (suggesting using
geolocation services to track an infringing IP address to DC. justi?es a good-faith belief this
court has personal jurisdiction).

Yet the DC. Circuit never said that was the only requirement. For one, the Court must
also balance Strike 3 ?3 need for discovery with a potentially-noninfringing defendant?s right to
be anonymous. Only the Second Circuit has articulated this balance, looking to the plaintiff?s
showing of a prima facie claim of actionable harm; their discovery request?s speci?city; their
alternative means to obtain the subpoenaed information; the need for the subpoenaed information
to advance the claim; and the objecting party?s privacy expectation. Arista Records, LLC v. Doe
3, 604 F.3d 110, 119 (2d Cir. 2010) (citing Sony Music Enrm ?t Inc. v. Does 1-40, 326 F. Supp. 2d

556, 564-65 (S.D.N.Y. 2004) (Chin, see also, Call of the Wild Movie, LLC v. Does I-

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1,062, 770 F. Supp. 2d 332, 351. (D.D.C. 2011) (Howell, J.) (applying this test); Arista Records
v. Does 551 F. Supp. 2d 1, 8 (D.D.C. 2008) (Kollar-Kotelly, J.) (same).

One can hardly blame the DC. Circuit for its silence. Of the forty cases Strike 3 has ?led
in this district (including seven on a single day), nOne have reached the Court of Appeals. 
Twenty?two have been voluntarily dismissed, all but one following the same formula: Strike 3
?les a complaint (identical in every case except for the infringing IP address). A few weeks later,
Strike 3 ?les 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,
or? RCN). Satis?ed by Strike 3?s showing of likely personal jurisdiction, the court grants the
rriotion, 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.1 In the lone exception, Civil Case No. 18-
810, the defendant successfully obtained the court?s approval to proceed anonymously, and
appeared to be preparing a responsive pleading?but Strike 3 dropped the case. 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 respondz; in ?ve, Strike 3?s early discovery motion remains
pending3; and in one, Strike 3 hasn?t yet ?led its discovery motion.4 This sounds crazy, but its

par for the copyright-trolling course. According to PACER, Malibu Media, LLCw-eanother adult

 

1 Civil Case Nos. 17?2338, 17-2342, 17-2344, 17-2345, 17-2346, 1772347, 18-536, 18-537 (allowing defendant to
anonymously move to quash), 18-804, 18-805 (allowing defendant to move to proceed anonymously), 18-806, 18-
807 (requiring the defendant?s anonymity until further court order), 18-808, 18-1193, 18-1197 (prohibiting Strike 3
or the ISP from publicly revealing the defendant?s identity), 18-1 199 (allowing defendant to move to proceed
anonymously), 18?1424, 18-1426, 18-1430, 18-1432, 18-1894.

2 Civil Case Nos. 18-1192 (allowing defendant to move to proceed anonymously), 18-1 198 (allowing defendant to
move to proceed anonymously), 18-1427, 18-1429, 18-1431, 18-1898 (requiring the defendant?s anonymity until
further court order), 18-1899, 18-1902, 18-1903 (allowing defendant to move to proceed anonymously), 18-1904
(requiring the defendant?s anonymity until further court order), 18-2205, 18-2206.

3 Civil Case Nos. 18-1425 (this case), 18-2204, 18-2210, 18-2211, 18-2212.

4 Civil Case No. 18-1896.

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?lm company??led 150 cases against anonymous defendants in this district (7183 nationally)
from 2012 to 2018, some joining dozens of individuals. How many of those cases reached the
Court of Appeals? Zero.

Although the DC. Circuit has never had the chance to elaborate on its test, the
undersigned considers the Second Circuit?s test very persuasive. And not for nothing, it comports
with the DC. Circuit?s more general obserVation that, when evaluating good cause under Rule
26, ?interests in privacy may call for a measure of extra protection.? In re Sealed Case (Medical
Records), 381 F.3d 1205, 1215 (DC. Cir. 2004) (internal quotation marks omitted) (quoting Fed.
Civ; P. 26(b) advisory?committee?s note (1970)). ??Moreover, in determining which interests to

weigh in the Rule 26 balance, courts look to statutdry con?dentiality provisions, even if they do
not create enforceable privileges.? Id. at 1215-16. In this case, the Court looks to the
Communications Act, which protects cable subscribers? names and addresses. 47 U.S.C. 
551(c). But of id. at (providing for disclosure ?pursuant to a court order authorizing
such disclosure, if the subscriber is noti?ed of such order by the person to whom the order is
directed?).

Applying the Second Circuit?s test, and placing great weight on defendant?s privacy
expectation, the Court will deny Strike 3?s motion for early discovery. To be sure, 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.

But Strike 3 ?3 request lacks the type of speci?city the Second Circuit?s test requires: that
the request will identify a copyright infringer who can be sued. See Sony Music, 326 F. Supp. 2d

at 566; see also Soo Park v. Thompson, 851 F.3d 910, 928 n.21 (9th Cir. 2017) 

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circumstances ?where the identity of alleged defendants will not be known prior to the ?ling of a
complaint . . . the plaintiff should be given an opportunity through discovery to identify the
unknown defendants, unless it is clear . . . that the complaint would be dismissed on other
grounds?? (quoting Gillespie v. Civiletti, 629 F.2d 637, 642?43 (9th Cir.? Strike 3 could
not withstand a 12(b)(6) motion in this case without resorting to far more intensive discovery
machinations suf?ciently establishing defendant did the 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. 

Similarly,?even though ?defendants 'have little expectation of 'privacy in downloading and
distributing copyrighted [content] without permission,? Sony Music, 326 F. Supp. 2d at 566-67,
Strike 3 fails to give the Court adequate con?dence 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 ushy 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 ?awed identi?cation 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. Since Strike 3?s

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discovery request lacks the required speci?city and does not overcome defendant?s privacy
expectation, the Court will deny Strike 3?s motion for early discovery.

Though Strike 3 admits a protective order could allow defendant to anonymously
challenge the subpoena, Br. at 8, that 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.
Moreover, the inconsistency with which courts permit defendants to proceed anonymously
illustrates the ineffectiveness of this shield more generally. See supra notes 1?2 and
accompanying text. 

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,5 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 identi?cation of infringers. Given these
high stakes?unlikely to appear in more typical cases?the Court will not accept the risk of
misidenti?cation. Maybe someday someone will show the Court a method to identify infringers
with suf?ciently less risk of false accusations. But because Strike 3 fails to do so here, it cannot

subpoena defendant?s ISP.

 

5 The Court notes ?it is unsettled in many circuits??including this one?.?whether pornography is in fact entitled to
protection against copyright infringement.? Liberty Media Holdings, LLC v. Swarm Sharing Hash File, 821 F. Supp.
2d 444, 447 (D. Mass. 2011); see also Next Phase Distb., Inc. v. John Does 1?27, 284 F.R.D. 165, 171 (S.D.N.Y.
2012) the Motion Picture is considered obscene, it may not be eligible for copyright protection?). But see
Jartech, Inc. v. Clancy, 666 F.2d 403, 406 (9th Cir. 1982) (extending copyright protection to pornography); Mitchell
Brothers Film Group v. Cinema Adult Theater, 604 F.2d 852, 854-58 (5th Cir. 1979) (same).

7

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II. Because Strike 3 cannot effectuate service without subpoenaing defendant?s ISP, its
case must be dismissed. 

Denying Strike 3?s discovery motion dooms its claim. Simply put, Strike 3?s inability to
identify defendant makes effectuating service or prosecuting the case impossible. So because
Strike 3 cannot proceed with its claim, the Court dismisses it.

Strike 3 does not dispute this logic. It concedes ?[d]efendant must be identi?ed before
this suit can progress.? See. Br. at 5-6 (internal quotation marks omitted) (quoting Malibu Media,
LLC v. Doe, 177 F. Supp. 3d 554, 556 (D.D.C. 2016)). But ?[w]ithout information from the 
Strike 3 admits it cannot ?correlate the [infringing] IP address to its subscriber and identify
Defendant as the person assigned the IP address.? Br. at 6 (internal quotation marks omitted)
(quoting Strike 3 Holdings v. Doe, No. 17-1680, 2017 WL 5001474, at *4 (D. Conn. Nov. 1,
2017)). And so Strike 3 ?cannot name and serve those whom they allege to have infringed upon
their copyrights.? Br. at 6 (internal quotation marks omitted) (quoting Call of the Wild Movie,
LLC, 770 F. Supp. 2d at 352-53).

Strike 3?s lone rebuttal points out that ?courts have rejected the dismissal of suits against
unnamed defendants . . . until the plaintiff has had some opportunity for discovery to learn [the
defendants?] identities.? Br. at 6 (alterations in original) (internal quotation marks omitted)
(quoting Davis v. Kelly, 160 F.3d 917, 921 (2d Cir. 1998)); see also Br. at 6 (quoting Malibu
Media, LLC v. Doe, No. 15-986, 2015 WL 5173890 at *1 (D.D.C. Sept. 2, 2015)). But as this
opinion has already explained, this case is exceptional, limited as, Part I describes. Because. Strike
3 chases a dead-end, the Court will deny as moot Strike 3?s motion to extend the service deadline

and dismiss the case.

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Conclusion

Armed with hundreds of cut-and-pasted complaints and boilerplate discovery motions,
Strike 3 ?oods 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.

The Court denies Strike 3?s ex parte motion for discovery prior to the Rule 26(t)
conference. Since this makes serving the defendant impossible, the Court denies as moot Strike
3?s motion eirtending time?to effectuate service and dismisses the case without prejudice. An

accompanying order will issue.

Date: November 2018 a K. 

Roy/ce- C.-Lamberth
United States District Judge