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.

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


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  1. identicon
    Anonymous attorney, JD, 10 Apr 2020 @ 11:49pm

    My 2 cents...

    Seems likely (beyond a preponderance of evidence), that Strike 3 LLC will be going down in a SIGNIFICANT display of judicial pushback during 2020. These attorneys are involved in a SCHEME to turn the judiciary into an ATM as some judges have already stated ON THE RECORD. (And what do you think they are saying behind closed doors?? )

    Some of the attorneys involved include: Lincoln Bandlow and Emilie Kennedy, Jaqueline James, John Atkin, Tyler Mamone, Shirley Nasir, Andy Nikolopoulos, David Grant Crooks.

    Note: please comment with other attorneys involved so we can build a list of everyone involved.

    If you get kicked out of your law firm because your partners are offended by your troll legal work... is that a sign that you HAVE LOST YOUR PERSONAL MORAL COMpASS? (Can you guess who this person might be?)

    Some things that may be very likely to occur this year:

    • Individual attorneys may receive reprimands from their state bar association.
    • Disciplinary action and disbarment

    Because they have filed so many cases to clog the courts (which are closed in many states due to the Covid Virus), that will create even more problems than usual. Nearly every court in the country is now closed for at least a month but likely to be 2 or 3 months AT A MINIMUM as this whole virus thing plays out.

    And guess what obvious stuff happens then. The cases in progress before theirs were filed need to proceed. And basically everything will be DELAYED by MONTHS so there will be MASSIVE pressure on the courts to get these low quality legal cases out fo the courts and off the dockets. Might mean forced arbitration. That’s one avenue to end this whole scheme. Or they may just get tossed. But my gut is strong on this one that the INCREASED PRESSURE here (decreased legal capacity in the courts) will create NEW pressures that will simply accelerate the pushback on Strike 3 LLC, their troll behavior and the attorneys named above.

    And do you know what that means....In all likelihood, this is the year the “(anal) shit hits the fan!”

    Many cases are in progress and 2020 will be the year this whole SCHEME will be dead in the water.

    Get your popcorn and watch what happens...

    As we are seeing weekly, judges in many/most states are taking action against them and they are being punished for their bad faith efforts. Some of their cases are online with audio. Some of the attorneys have said things that appear to very contradictory about the percentage of cases they do not pursue.

    Oh and when some people read the word “contradictory” in the above sentence they may think that person is LYING TO THE JUDGES. (Not what I wrote but i would understand...)

    Some of these Strike 3 LLC attorneys have said things in court that just might not turn out to be factual. For example, they have said they often dismiss cases. The community here knows from published cases and informal gossip that this is NOT TRUE. An ISP is NOT a person as everyone with 2 brain cells knows. But they have never said what their misidentification (aka “overcharging” percentage is, or what damages they are liable for in their pursuit of people they know are innocent. Truth is, as other legal scholars have written about (see Sag) they do NOT seem to care.

    If you tell different attorneys different things about these numbers when there should be case disposition statistics available in a simple 1 page spreadsheet, is a RED FLAG that everyone needs to take action on.

    Also, be sure to read -> https://www.techdirt.com/articles/20200210/19014243899/judge-shuts-down-copyright-trolls-cut-and-run -effort-hits-it-with-40k-legal-fees.shtml

    MIAMI-DADE and the MISUSE of the “pure discovery” in this local court:
    The use of the “pure discovery” approach in this court is an obvious abuse of the intent of federal copyright law. The judges in this district are enabling the ATM approach and enabling these trolls to abuse Americans.. So one has to wonder

    • Do the MIami-Dade JUDGES NOT realize what is going on and how this is playing in the rest of the country?
    • Is something more sinister happening here - could it be they are receiving campaign contributions to rule in favor of this nonsense?

    • Will these JUDGES realize they are being played and start to have concern over their records, legacy and negative impact on society?

    • Will guidance come down from a higher legal authority through informal channels that changes the course here?

    so..one has to wonder how this plays out. :)

    OBSCENITY - this needs to happen
    Also, interesting note that doesn’t help a torrent case per se, but sodomy laws still exist in approximately 1/3 of the US. Someone in one of those states may take them to court on obscenity charges. Wouldn’t you love to see their legal Counsel Emilie Kennedy in court to talk about how their “award winning” ANAL films are artistic endeavors? That will be a fun trial to watch. Would be great to have this trial in the Miami-Dade court district with a bunch of senior citizen jurors who would be forced to watch some of their “award winning ANAL” films. Can you just imagine how awesome that would be?

    Oh...and if the films are declared obscene, they will lose copyright protection.

    PS - if anyone has any data about Strike 3 LLC’s ACTUAL REVENUE from trolling vs. their actual business revenue that would be a KEY data point to share with everyone. Technically it’s probably data from “general media systems” (the parent company in this scheme).

    We have some strong educated guesses that would appear to support the idea that what they have written in pleadings or said in court....hmm...well might seem to be not truthful.

    Look forward to your comments and replies.


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