Minnesota Judges Refuse To Unmask Defendants For Copyright Troll Strike 3

from the about-time dept

With copyright trolling a business model in full force across the world, we've noted that there has finally started to be some pushback against these tactics. In Europe, both courts and ISPs have begun wising up to the notion that IP addresses are an incomplete and faulty piece of "evidence" at best, with both government and industry also finally beginning to question just where user privacy should fit into all of this. In America, unfortunately, copyright trolls have all too often been able to unmask customers through ISPs based on court orders pretty much at will. Strike 3 Holdings is one such troll, with the company being partially responsible for a number of piracy lawsuits shooting out of the gate in 2018 at record speed.

And, yet, it appears that there might finally be some pushback coming to the US too, as two judges in Minnesota have now refused to order ISPs to give up customer information to Strike 3.

Late last month, Magistrate Judge Franklin Noel denied such a discovery motion. As a result, Strike 3 is not allowed to ask the ISP, Comcast in this case, for the personal details of the account holder associated with the IP-address.

According to Judge Noel, these cases present a conflict between the copyright protections of the DMCA on the one hand and the privacy rights of the public as set out in the Communications Act. Here, the scale tips in the favour of the latter.

Frankly, this reasoning should be plainly obvious. A copyright holder marching to an ISP with an IP address that does not pertain to an individual ought not be able to unmask that individual using such faulty evidence. It's long past time that the courts wise up to this and begin taking seriously the rights and interests of the public to not have private third party companies be able to associate them with their online activity.

But this wasn't a one-off. Another court looked at Noel's ruling and decided it was sound.

Last week Magistrate Judge David Schultz cited the ruling in two similar cases, also filed by Strike 3. Again, the subpoena requests were denied to secure the privacy of the alleged BitTorrent pirates.

“From this Court’s perspective there are obvious tensions between DMCA, the Communications Act, and Federal Rule of Civil Procedure 45,” Schultz’s orders read.

“The Court is not unsympathetic to Plaintiff’s need to discover the actual identity of the infringer of its copyright; however, the discovery sought by Plaintiff through a Rule 45 subpoena directly collides with federal privacy protections.”

If this becomes a trend, what will be most interesting about it is that nothing in the laws in question has changed. Such a trend would represent instead an evolution of legal thought by judges on the practices of copyright trolls. It may also represent better informed defendants and ISPs that are aware of how shitty all of this is and also more aware of their respective rights in the law.

To be sure, a couple of rulings is no cause to rest easy. The vast majority of copyright trolling efforts succeed in at least getting this sort of customer information. Still, hopefully other courts will take notice of these rulings and agree that they should not be rubberstamp stops on the way to violating consumer privacy.


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  • identicon
    Bob Ruth, 11 May 2018 @ 3:05pm

    One more swing and miss and it will be Steeeriiiike 3!

    You're out!

    reply to this | link to this | view in chronology ]

    • identicon
      Pixelation, 12 May 2018 @ 9:10am

      Re: One more swing and miss and it will be Steeeriiiike 3!

      Hot dogs, get your hot dogs! Because it's One, Two, Three strikes you're out at the old troll game!

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 May 2018 @ 5:41pm

    What this article fails to mention is Richard Bennett's utter meltdown on the TorrentFreak report. Seriously, for someone who claims to hate ISP regulation he suddenly has a keen interest in seeing them regulated.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 May 2018 @ 5:44pm

    Blue hates it when privacy rights are enforced.

    reply to this | link to this | view in chronology ]

  • icon
    Toom1275 (profile), 11 May 2018 @ 9:07pm

    nothing in the laws in question has changed. Such a trend would represent instead an evolution of legal thought by judges

    Common law!

    reply to this | link to this | view in chronology ]

  • identicon
    Yes, I know I'm commenting anonymously, 12 May 2018 @ 10:48am

    What if the complainant has to post a bond for each item of claimed infringement, to be returned when the judge gives their verdict... and not to be returned upon settlement.

    reply to this | link to this | view in chronology ]

    • identicon
      tp, 15 May 2018 @ 1:20am

      Re:

      > What if the complainant has to post a bond for each item of claimed infringement

      This system already exists. They call it "copyright".

      How it works is that it takes investment of time and money to create a copyrightable product. This works as a bond for the system. Then it's author's job to extract money from the marketplace. If author fails in this task, he might need to starve when the system thinks he's not doing his share of the maintainance of the society. Before starving, these authors are trying all the tricks in the book, including selling the product, giving it away for free, sueing the users for copyright infringement, raiding the premises where infringement happens, linking ip-addresses to infringements and asking courts to hand over contact addresses for settlement demands, bundling the product with stuff made by other people, selling it to other people/companies, selling the company, hiring goons to market it, letting economists run wild with the product etc..

      All this needs to happen before author dies of starvation. So authors are always busy marketing their products.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 15 May 2018 @ 8:02pm

        Re: Re:

        Except that the wall of text you described has absolutely nothing to do with what the original poster described. The original poster suggested a deterrence for copyright holders who insist on shaking down scared victims through abuse of the law.

        And you're one to talk about busy marketing when all you did was put posters on two buses in a town, and expect foreigners who would never see those buses to buy you a mansion.

        reply to this | link to this | view in chronology ]

  • icon
    mdaniels5757 (profile), 15 May 2018 @ 6:05am

    Hon. Franklin Noel? Sounds familiar...

    Looks like this is the same Hon. Franklin Noel who was involved in a Prenda Law case. He found that:

    The Court has been the victim of a fraud perpetrated by AF Holdings, LLC.

    And ordered that:

    ...the appropriate remedy for this fraud is to require AF Holdings to return all of the settlement money it received from all of the Defendants in these cases, and to pay all costs and fees (including attorneys’ fees) incurred by the Defendants.

    After all settlement payments are returned and other fees are paid, all five cases should be dismissed on the merits, with prejudice.

    Seems like he does not like copyright trolls...

    reply to this | link to this | view in chronology ]


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