from the you're-out dept
We were just discussing the deafening silence coming from two of the most prolific copyright trolls in federal courts, Malibu Media and Strike 3 Holdings. While both trolls had set a record-breaking pace for the better part of this year, both also suddenly went mostly silent over the last couple of months. As we indicated in that post, Strike 3 specifically appears to have simply moved its operations to Florida state courts. While we were not totally sure why that would be at the time of the last post, we had a theory.
This may have to do with an attempt to avoid precedence in rulings as to the evidence it uses, chiefly the practice of pretending that IP addresses identify people. If that isn’t it, it could also be some version of the trick Prenda Law attempted to pull in moving copyright-cases-in-disguise to Florida courts. Essentially, they sue instead with a nod toward the CFAA as a way to enter into discovery, while also naming a bunch of co-conspirators — rather than defendants — to the case. All of this as a way to get at IP address and account information for a whole bunch of people in state court, only to turn around and sue those same co-conspirators in federal court. If that is what Strike 3 is doing, it’s really dumb because it got Prenda in a bunch of trouble.
It turns out that’s exactly what is happening. Strike 3 is suing ISPs with complaints of “a pure bill discovery”. The entire purpose of those types of suits are to discover defendants. In this case, Strike 3 is asking the court to order ISPs to identify account holders of IP addresses it claims are infringing copyright. It’s not actually a copyright lawsuit, however, as that would have to be filed in federal court. Instead, this looks to be an end run around copyright law and the costs associated with filing in federal court.
In this case, this means a subpoena directed at ISPs to identify the account holder that’s linked to the allegedly infringing IP-addresses. This tactic provides the same result as going through a federal court and allows Strike 3 to demand settlements as well. While the number of cases in state court is relatively modest, these cases target a substantially higher number of defendants per case. That’s also one of the main advantages. By filing a single case with dozens or hundreds of defendants, the filing fee per defendant is very low.
In federal court, the company generally targets one defendant per complaint, which is far more expensive. And while Strike 3 mentions that it is requesting the information for a subsequent copyright lawsuit, it will likely try to get a settlement first.
These state courts also don’t have the muscle memory built up to push back on Strike 3’s trollish lawsuits, using scant evidence such as IP addresses to unmask private citizens. Reporting suggests Florida courts have already granted subpoenas in many of these cases. In others, however, there is thankfully some pushback.
Attorney Jeffrey Antonelli and his firm Antonelli Law‘s local counsel Steven Robert Kozlowski objected to these subpoenas on behalf of several defendants. In his motion to quash he highlights a variety of problems, including the earlier observation that copyright cases don’t belong in a state court.
“This Court lacks subject matter jurisdiction over the copyright claims at issue in the lawsuit which the subpoena to Comcast is premised upon. Federal courts have original and exclusive jurisdiction over civil actions arising under federal copyright law,” the motion reads.
Another problem is that the purpose of the “pure bill of discovery” is to obtain facts or information a defendant has. However, the targeted ISPs are not defendants in these cases. Finally, the motions highlight that the IP-addresses may not even be linked to Florida, where the court is based. Strike 3 should have known this, as they always disclose the location in federal court. However, they may have omitted it on purpose, the defense argues.
It’s some form of justice to see a copyright troll sue ISPs in state court over federal copyright laws, looking for defendants that aren’t subjects of the suit, and all while that same troll withholds facts from the court that would illuminate yet another reason the lawsuit shouldn’t have been filed in that state court to begin with. Whatever the trifecta is for getting a court to sanction a lawfirm, this certainly seems to fit the bill.
And, yet, with state court judges not being as well versed in copyright law as their federal cousins, these subpoenas often get approved. That’s a problem, one which will see copyright trolling get exponentially worse if it’s allowed to continue. Here’s hoping there is enough pushback from defendants so as that doesn’t occur.