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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  • identicon
    Pixelation, 21 May 2019 @ 4:05pm

    Popcorn

    I can only hope Strike3 will Carreon. Another round of entertainment.

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

  • icon
    That One Guy (profile), 21 May 2019 @ 5:35pm

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

    Always nice when a judge realizes that extortionists like that aren't looking for justice but simply an easy payday from someone pressured into a 'settlement' via presented with the 'options' of spending a ton defending themselves in a case where the accuser can simply cut and run at any time, or spending less but still a significant amount to avoid court altogether.

    Now, if every other judge on the planet would follow suit and put at least this time of extortion on ice, that'd be great...

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

    • 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.

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

      • identicon
        Anonymous Coward, 22 May 2019 @ 6:29am

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

        "is there someone else in the home with a penis we can harass?"

        Not sure what this is doing in your comment.

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

        • identicon
          Anonymous Coward, 22 May 2019 @ 7:06am

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

          You'd be surprised how often that comes up in Malibu Media cases.

          They literally believe being male makes you likelier to be guilty of pirating their shit.

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

        • icon
          That Anonymous Coward (profile), 22 May 2019 @ 6:24pm

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

          Its really hard to suggest that a female accountholder is a porn addict who was 'stealing' the pron at the center of the lolsuit.

          They often try to amend the lawsuit to add the name of the BF/SO/Spouse/Male child b/c (shocking) having a penis means you like the porn.

          They will demand a list of everyone with a penis who has been in your home so they can harass them & investigate them for having done it... all based on some numbers & owning a penis.

          They have trolled the Facebook profiles of those they accuse & lets say you liked a post about GoT, they would provide a list of everything else they claim you stole from everyone else & if GoT was on the list BAM proof positive they are a pirate & need to pay us. (This was done... a lot until the courts finally got upset.)

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

  • identicon
    Anonymous Coward, 21 May 2019 @ 5:42pm

    Another Strike 3 story? With Strike 3 on the losing end? Now where have we heard that before?

    Batten down the hatches boys, we're in for another Jhon Herrick Smith storm of subpoenas, women getting called hookers, and jokes at the expense of Masnick's kids! (Nice job getting the word sh!tstain caught by the filters, MyNameHere!)

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

  • identicon
    Anonymous Coward, 22 May 2019 @ 12:33am

    Surely one of the biggest problems is that clerks can sign off allowing cimpanies like this to go after anyone they chose on the flimsiest of infomation. Judges may well becomming wiser to the tactics employed but it's no good if clerks just wave docs through!

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

  • identicon
    Anonymous Coward, 22 May 2019 @ 6:32am

    It is not real clear to me how this extortion is allowed to exist. Seems there would have to be some sort of assistance within the government to not go after these obviously criminal activities.

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

    • icon
      Stephen T. Stone (profile), 22 May 2019 @ 9:23am

      It is not real clear to me how this extortion is allowed to exist.

      Nobody who matters considered it extortion until now.

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

    • icon
      That One Guy (profile), 22 May 2019 @ 2:58pm

      Re:

      Because copyright causes brain damage, both temporary and permanent, such that actions that would be blatantly illegal(extortion, guilty until proven innocent...) in any other context are not only given a pass but supported in the law and courts simply because they are draped under the facade of 'enforcing copyright'.

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

    • icon
      That Anonymous Coward (profile), 22 May 2019 @ 6:32pm

      Re:

      When a mommy AA and a daddy AA love money very much, they spend money to buy extensions to laws so that a cartoon mouse, who has already had all of the promised benefits, will not fall into the public domain b/c the lawyers told them if this happens their empires will cease to exist.

      Yeah the governments response literally was GFY pirate bastard.
      (There is this thing where people want to believe lawyers would never do the things we said they were doing & you have to provide 12 tons of evidence to get them to even consider it.)

      Then Judge Wright channeled the Star Trek & told the government to do something.

      Then they sued the scoobys & the internet, then shit got real.

      The better part of a decade pushing this boulder up a hill...
      and the best fix the government has offered to date is lets make a rocket docket with lower filing fees so they can shake down people faster.

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

  • identicon
    Anonymous Coward, 22 May 2019 @ 7:44am

    "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 . . . . etc"

    now if only judges would have that mindset and look at the coercive nature of zealous overcharging of defendants ( let alone the excessive bail conditions and payments that generates) in order to secure a favourable plea deal

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

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  • 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.

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


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