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.

It's a list that continues to grow, with one Judge in Florida apparently taking issue with the use of IP addresses entirely.

In February, Judge Ungaro was assigned a case filed by the adult entertainment company “Strike 3 Holdings,” which has filed hundreds of lawsuits over the past several months.

The company accused IP-address “72.28.136.217” of sharing its content through BitTorrent without permission. The Judge, however, was reluctant to issue a subpoena. She asked the company how the use of geolocation and other technologies could reasonably pinpoint the identity and location of the alleged infringer.

Strike 3 went on to boast that its IP address matching was roughly 95% effective. After all, as Blackstone's Ratio goes: Better to let ten guilty men go free than to let any more than five out of one-hundred suffer.

That, of course, is not how the saying goes. Instead, the idea is supposed to be that justice is based on good, quality evidence that points directly to the accused. Instead, in addition to mentioned flawed IP location issue, Strike 3 flatout admits that this IP-to-user identification doesn't actually tell who infringed what.

Strike 3 further admitted that, at this point, it doesn’t know whether the account holder is the actual copyright infringer. However, the company believes that this is the most plausible target and says it will try to find out more once the identity of the person in question is revealed.

That's actually remarkably honest as far as copyright trolls go: we're not entirely sure our IP address is correctly identified, and that IP address doesn't actually tell us who the infringer is, but we promise to try to get actual evidence if you help us with this non-evidence. Still, it doesn't make much of a case for the court ordering anything at all, does it?

That's why it really shouldn't be a surprise when you get a judge stating things like the following.

“There is nothing that links the IP address location to the identity of the person actually downloading and viewing Plaintiff’s videos, and establishing whether that person lives in this district,” Judge Ungaro writes.

The order points out that an IP-address alone can’t identify someone. As such, it can’t accurately pinpoint the person who allegedly downloaded the copyright infringing content.

“For example, it is entirely possible that the IP address belongs to a coffee shop or open Wi-Fi network, which the alleged infringer briefly used on a visit to Miami,” Judge Ungaro notes. “Even if the IP address were located within a residence in this district, the geolocation software cannot identify who has access to that residence’s computer and who actually used it to infringe Plaintiff’s copyright,” she adds.

Exactly. And the rules of evidence aren't there just for the sake of letting porn-watchers go free on technicalities. They matter. If we were to allow copyright trolls to substitute the kind of shoddy facts like IP addresses for actual evidence, and if courts were to accept that substitute, then what we're really all allowing for is a substitute for justice. The public doesn't want that.

And, it would appear, more and more judges are finally realizing that they don't want that either.

Which is the standard that then should be applied to Strike 3 Holding's lawyer, Lincoln Bandlow, who had to go to court to explain why he and his firm failed to provide a status update on 25 cases, despite the court ordering he do so, and was forced to explain why he thinks the court shouldn't just sanction him. Barlow attempts to explain this all away as a simple matter of he and his firm not being able to make their technology work.

The most recent sanctions hearing in Sacramento came as a result of Bandlow and Strike 3 failing to provide a status report related to at least 15 cases within a 45-day period. On Jan. 2, Magistrate Judge Carolyn Delaney ordered Strike 3 to explain why it shouldn’t be sanctioned $250 for missing those deadlines. At least 25 Strike 3 cases are at issue on Wednesday, according to a search of Strike 3’s court dockets.

Bandlow said in court filings that Strike 3 failed to file the status reports because it had “encountered issues with its calendaring procedure” for cases in U.S. District Court for the Eastern District of California. He also said the filing mistakes were in part due to a lack of staff during the holidays and an inability to receive emails from the court.

In a separate interview, Bandlow complained that this whole issue is ridiculous, since he claims that in his copyright trolling cases there would be very little about which to update the court after a mere 45 days. He also blamed the failure to provide these status updates on his firm's spam filter. The claim is, apparently, that the firm's spam filter blocked several emails from this specific court. In addition, he and his firm also had issues using this specific court's docketing software.

None of which, mind you, would have been valid excuses were this one of Bandlow's copyright cases. You can practically hear one of Strike 3's victims proclaiming that they weren't sure how to set up proper security on their wireless access point to make sure others couldn't come along and use it to infringe. It's obvious how that argument would play to Bandlow's ears were it to be made.

It's also worth noting that this particular lawyer aand this particular law firm are not the typical copyright trolling outfits. Fox Rothschild is an enormous firm, employing more than 900 attorneys. Barlow is a higher-up at the firm. With the resources afforded to this lawyer at this firm, blaming technology for not meeting court-mandated deadlines is laughable. And, yet, here he is blaming his inability to whitelist the court's email server as the reason he should not be sanctioned for not following the court's orders.

Well, that and the ridiculous claim by Bandlow that he's already sanctioned himself.

Bandlow voluntarily dismissed the cases in which he missed a deadline and told the court he would not file new cases in the Eastern District of California until he was able to fix the technical problems he was experiencing with the court.

“In essence, we’ve sort of sanctioned ourselves in a weird way because that is $400 per filing, and all of that is down the drain,” Bandlow said.

It takes a lot to make me cry and this doesn't quite reach that bar. And it didn't meet the court's bar either, apparently as the decision came down to sanction Barlow despite his excuses and despite the voluntary dismissal of the cases in question.

In light of Mr. Bandlow’s representations at the hearing, the court recognizes that his bad faith is not the most egregious kind. The court believes that Mr. Bandlow’s apologies are sincere. At the same time, the fact remains that Mr. Bandlow delayed and disrupted the litigation here by willfully ignoring, and thereby disobeying, explicit orders and warnings from the court—conduct that is unacceptable from any attorney, let alone one with over twenty-five years of experience. See Chambers, 501 U.S. at 46. Therefore, for the foregoing reasons, the court determines that it is appropriate to impose monetary sanctions on plaintiff’s counsel, Lincoln D. Bandlow, but in a lesser amount than originally contemplated.

The sanctions only amount to $750. Still, this is the first time Barlow has ever been sanctioned by a court and it only happened once he decided to get into the trolling bed with a porn company infamous for copyright trolling. Perhaps that will serve as some kind of a warning for other attorneys out there.