US Magistrate Judge Provides The Template To End Copyright Trolling With Ruling Against Strike 3

from the you're-out dept

While we've been busily pointing out that the practice of copyright trolling is a plague across the globe, it seems there is something of a backlash beginning to build. For far too long, copyright trolls have bent the court system to their business model, with discovery requests and subpoenas allowing them to unmask internet service account holders on the basis of IP addresses, and then using that information to send settlement/threat letters to avoid trials altogether. Put simply, that is the business model of the copyright troll. The backlash against it has been multi-pronged. Canada has begun restricting what types of threat letters trolls can force ISPs to send to their customers, for instance. Elsewhere, Swedish ISPs have have led something of a legislative crusade against copyright trolls. In the US, some courts are finally realizing how bad IP addresses are as evidence, pushing trolls to get something better.

But the key to ending the plague of copyright trolling has probably been best outlined in a recent decision by a US Magistrate Judge against Strike 3 Holdings, in which the judge argues using Strike 3's own statistical analysis that it is abusing the court system to the detriment of innocent people.

Judge Orenstein denied motions for expedited discovery in thirteen cases. This means that the adult video company can’t get a subpoena to identify the alleged pirates. While we have incidentally seen similar decisions, the motivation, in this case, is worth highlighting.  

In his order, the Judge writes that allowing Strike 3 to obtain the identities of the account holders creates a risk.

Specifically, it will put Strike 3 “in a position to effectively coerce the identified subscribers into paying thousands of dollars to settle claims that may or may not have merit, so as to avoid either the cost of litigation or the embarrassment of being sued for using unlawful means to view adult material.”

In other words, the Judge is noting that Strike 3's copyright troll business model is, by nature, one that should disallow it from the kind of unmasking of account holders it so desperately needs to do to make any of this work. Essentially, granting these motions in favor of Strike 3 would have the court endorsing, if not actively participating in, the systematic extraction of money from people based on fear and embarrassment. Whatever that is, it sure ain't justice.

The court doesn't stop there, however. The order continues by noting that granting the discovery of account information would almost certainly not result in Strike 3 actually bringing any cases to trial. Trial proceedings are supposed to be the point of such subpoenas, but Strike 3's own statistics prove it's not after trials at all.

Since 2017, Strike 3 has filed 276 cases in the district, but zero have gone to trial.

Of the 143 cases that were resolved in the district, 49 resulted in a settlement and 94 were voluntarily dismissed. The latter number includes 50 cases where Strike 3 wasn’t confident that the defendant is the infringer. In other words, people who are likely wrongfully accused. This means that in one-third of the resolved cases, Strike 3 has likely targeted the wrong person. This number is “alarmingly high,” according to the Magistrate Judge.

“Strike 3 acknowledges that in many cases, the ‘Doe’ it has sued – that is, the subscriber – will prove to be someone other than the person who engaged in the allegedly unlawful conduct the Complaint describes,” the order reads. “And as it has now revealed in response to my inquiry, the proportion of such unprovable cases is alarmingly high,” Judge Orenstein adds.

None of this is surprising to readers here, of course. This is how Strike 3 operates. The entire business model relies on a scattershot approach to threat letters, in which some percentage will comply and pay out of pure fear. The problem is and has always been that too many courts don't actually consider this fact when granting subpoenas to unmask account holders. Here, the court manages to put that thought into its decision.

And, as a result of these "alarming" statistics, the judge has denied the motion to unmask the account holders in these cases. It's not exaggerating to say that if all, or even most, courts took the same route as this one, copyright trolling as a business model would completely fall apart.

And that would be a very good thing.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: copyright, copyright trolling, magistrate judge, trolling
Companies: strike 3

Reader Comments

Subscribe: RSS

View by: Time | Thread

  1. icon
    That Anonymous Coward (profile), 21 May 2019 @ 7:31pm

    Re: Where's a cloning machine when you need one...

    And this is why there is this push for the 'small claims' copyright style of court, where they will rocket docket everything & force the accused to prove a negative...

    Yes my name is on the account, No I never viewed your content.
    But someone here did, is there someone else in the home with a penis we can harass??
    Why am I being forced to do your work for you?

    THEY HAVE AN IP THATS 51% award them thousands!!!!!

    Imagine if courts merely entered an order that if you cut & run you will pay any and all legal fees to your target. Getting legal fees is possible, but the courts have been loathe to award them to defendants who end up spending 5 times what the settlement cost was only to have the troll cut & run.

    An IP allegedly points to a location & they claim the person whos name is on the bill did it or is responsible.
    Except billpayers can't be responsible for the actions of others, & its REALLY unlikely they told a family member or guest 'ZOMG STEAL ALL THE SHITTY PRON!!!!!!!' so they have no liability or duty to the trolls.
    Civil matter, yet somehow a series of numbers allows them to demand depositions, full access to online accounts, & forensically sound imagines of every device in the home & pretend any resistance is evidence of guilt, because if you are innocent you'd let us turn your entire life upside down to prove it.

    What are the odds a cop could get a warrant to search oh say Trump Tower from top to bottom based on we saw a white dude we think did a bad thing walk in. We might find the dude we thought was guilty & discover he was innocent but we totally should be allowed to go to every floor & in every room to see if there is any crime there... because we saw dude walk into place.

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here

Subscribe to the Techdirt Daily newsletter

Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Insider Shop - Show Your Support!

Essential Reading
Techdirt Insider Chat
Recent Stories

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it

Email This

This feature is only available to registered users. Register or sign in to use it.