Tag Archives: strike 3

‘Copyright Troll Identified the Wrong Facebook Account in Piracy Case’

Post Syndicated from Ernesto original https://torrentfreak.com/copyright-troll-identified-the-wrong-facebook-account-in-piracy-case-200324/

Over the past three years, adult entertainment company Strike 3 Holdings has filed thousands of cases in US federal courts.

These lawsuits target people whose Internet connections were allegedly used to download and share copyright-infringing content via BitTorrent.

While many of these cases resulted in private settlements, Strike 3 has also experienced some setbacks. For example, in the ‘Cobbler’ case, the Court of Appeals previously ruled that copyright holders need “something more” than an IP-address for a viable case.

These and other rulings have motivated Strike 3 to adapt its business. As reported earlier this month, we noticed that the company had started to add information from social media services to its complaints, to ‘prove’ that the defendant is likely the infringer.

In theory, this could be a fruitful strategy but it is certainly not without flaws. This is what defense attorney Steven C. Vondran highlights in a recent BitTorrent piracy-related filing.

Vondran represents a defendant who is being sued by Strike 3 in a California federal court. This happened after the company first tried to expose this person at a Florida state court, through a controversial discovery request.

Among other things, the attorney argues that Strike 3 engages in “cut and run” tactics and that it fails to present “something more” than just an IP-address.

In making this argument, Vondran also draws attention to the social media tactic. While that wasn’t used in the case at issue, the attorney highlights it to show what can go wrong when Strike 3 tries to find “something more” than just an IP-address.

“If they can line up or match or correlate the movies being downloaded with a person’s Facebook ‘likes’ they figure this will overcome Cobbler and give them the ‘something more’ needed,” he points out.

According to the defense attorney, “this is total junk science” which he plans to make clear in a separate case he’s handling. Apparently, in that case the defendant’s interest in “Star Wars” on Facebook was brought up as relevant information.

“For example, in one case they stated that a Defendant is more likely to have downloaded their clients Blacked, Tushy, and Vixen videos because their social media likes indicate they have an interest in ‘Star Wars’,” Vondran writes.

Vondran informs the court that this is “a total joke.” Not just that, Strike 3 apparently also managed to identify the wrong account on Facebook, from someone who happens to carry a similar name.

“Making matters worse for them, the Defendant in that case will show that the Facebook account used was that of another person with a similar same,” Vondran writes.

“These are the type of callous intentional abuses that are going on and the Courts have the inherent power to quash the subpoena and dismiss the case for improper delay,” the attorney adds.

If this is indeed true, Strike 3’s attempt to present “something more” to the court has the potential to backfire. In any case, it’s worth keeping an eye on this motion to quash, as well as the upcoming filings about the wrongly identified Facebook account.

A copy of Steven C. Vondran reply to Strike 3’s opposition to the motion to quash is available here (pdf).

Drom: TF, for the latest news on copyright battles, torrent sites and more. We also have an annual VPN review.

‘Copyright Troll’ Uses Social Media Info Against Alleged BitTorrent Pirates

Post Syndicated from Ernesto original https://torrentfreak.com/copyright-troll-uses-social-media-info-against-alleged-bittorrent-pirates-200315/

Strike 3 Holdings is a familiar name in US federal courts. In recent years, the adult entertainment company has filed thousands of lawsuits against alleged copyright infringers.

While many of these resulted in private settlements, Strike 3 has also experienced some setbacks. This includes a scathing opinion that was released by Judge Royce C. Lamberth.

In 2018, Judge Lamberth accused the company of being a “copyright troll,” that uses “famously flawed” technology to prey on “low-hanging fruit,” flooding the courthouse “with lawsuits smacking of extortion.”

The Judge denied early discovery, which meant that Strike 3 couldn’t find out who the subscriber of an IP-address was, something that’s crucial in their cases.

The case in question is currently being appealed, with Strike 3 claiming that it wasn’t treated fairly, perhaps in part due to the adult nature of its works. This was discussed in detail during a hearing last week at the Court of Appeals for the D.C. Circuit.

Among other things, the appeal court judges questioned Strike 3 about possible false accusations, where the subscriber on an IP-address is not the infringer. The company admitted this indeed happens in roughly a quarter of all cases. However, to determine that they first have to know who the subscriber is.

This is where Strike 3’s attorney Lincoln Bandlow provided some interesting background. To back up some of their claims, the company has been scouring social media sites for possible leads. In some cases, that helps to serve as indirect evidence.

“We have cases where we get the name and address and we can look. We found somebody who’s tweeted ‘Love your content, do more works with this particular talent, etcetera, etcetera.’ Clearly that’s somebody who likes the works and there’s reason to believe that they are the ones who have infringed,” the attorney writes.

According to Bandlow, Strike 3 conducts a substantial investigation to back up their initial claims. And if it turns out they have the wrong person and can’t identify the target, the case is dismissed. However, in order to get to that point, they need to know who’s behind the IP-address.

This position was countered by the amicus curiae appellant, which wants the district court order to be upheld. While this decision is ultimately up to the appeals court, the social media angle also applies elsewhere.

Earlier this week we stumbled upon a new case Strike 3 filed at a federal court in Connecticut, which also mentions social media.

The lawsuit in question is different from the traditional ‘trolling cases’ where Strike 3 doesn’t know the defendant. In this case, it already obtained the subscriber information through the Florida state court, which we reported on previously.

Having a name and address upfront allowed Strike 3 to dig up some extra information, more than just an IP-address, which in this case includes social media info.

“Defendant’s social media webpages establishes that Defendant is interested in…,” the complaint reads, listing a summary of redacted interests.

While the adult entertainment company redacted the details, they likely relate to adult interests, or perhaps something piracy related. Whatever the case, it shows that people who put this type of information on social media may eventually have to face it in court.

Whether the judge in this case will see if as sufficient is another question. However, it clearly shows that the traces people leave online are not always as innocent as they seem.

Drom: TF, for the latest news on copyright battles, torrent sites and more. We also have an annual VPN review.

Copyright Troll Now Has its Own Piracy Tracking Tool

Post Syndicated from Ernesto original https://torrentfreak.com/copyright-troll-now-has-its-own-piracy-tracking-tool-200223/

Three years ago, Strike 3 Holdings had never filed a single lawsuit, but today the company has thousands of cases on its record.

These lawsuits are being filed across the United States, targeting people whose Internet connections were allegedly used to download and share copyright-infringing content via BitTorrent.

In the case of Strike 3, this refers to adult videos that are made available via the Blacked, Tushy, and Vixen websites. The company’s legal campaign has kept the courts busy and contributed to a record-breaking breaking number of piracy lawsuits.

Last summer the company suddenly stopped filing new lawsuits in federal court, but in December its efforts started up again. While the new complaints were very similar to the previous ones, there is a striking difference.

Previously, Strike 3 relied on evidence from the German company IPP International, which tracks file-sharing activity that takes place via BitTorrent networks. However, in the new cases Strike 3 is relying on evidence produced by its own tracking system.

“Plaintiff has developed, owns, and operates an infringement detection system,” Strike 3 wrote. In a complaint filed this week, it gets more specific by adding a name for its system: ‘VXN Scan’.

“Using VXN Scan, Plaintiff discovered that Defendant used the BitTorrent file network to illegally download and distribute Plaintiff’s copyrighted motion pictures,” Strike 3 informed a Virginia federal court.

The switch to the in-house tracking system coincided with Strike 3’s hiatus in filing new federal lawsuits. It’s unclear, however, why that happened. It could be an effort to save costs or the company may have severed its ties to IPP International for another reason.

The mention of the new detection system was highlighted by defense attorney Jeffrey Antonelli who also observed another change in Strike 3’s strategy. In addition to the torrent hash, the copyright holder now lists a file-hash as evidence as well.

This addition may very well be a response to a recent order in a Washington federal court, where Judge Zilly ordered Strike 3 to pay $47,777 to cover the fees and costs of an accused man. In this case, the Judge noted that torrent hashes are not sufficient to pinpoint an infringing file.

The complaint also mentions that the defendant is not the subscriber of the linked IP-address. This case address was previously mentioned in another case, so it’s possible that Strike 3 obtained extra information about the alleged pirate from the account holder.

Whether the new complaint and in-house tracking system will be able to withstand scrutiny from defense lawyers has yet to be seen. Thus far, Strike 3’s technology hasn’t been tested in court.

That said, the description does raise some questions. According to the adult video producer, VXN Scan doesn’t “upload content to any BitTorrent user” because “it is incapable of doing so.” At the same time, however, the defendants are accused of “downloading” pirated content.

Technically, a tracking system that merely downloads content can’t prove that other users downloaded anything, only that they uploaded material. That said, the complaint would still be valid if defendants only uploaded files, when they are not authorized to do so.

All in all, it’s clear that Strike 3 doesn’t plan to halt its legal efforts anytime soon. The company previously started experimenting by filing lawsuits in county court and with its own tracking system, the related scheme may become even more profitable.

A copy of Strike 3’s complaint mentioning the new VXN Scan detection system is available here (pdf).

Source: TF, for the latest info on copyright, file-sharing, torrent sites and more. We also have VPN reviews, discounts, offers and coupons.

Copyright Troll Drops Lawsuits When it Gets the ‘Wrong’ Judge

Post Syndicated from Ernesto original https://torrentfreak.com/copyright-troll-drops-lawsuits-when-it-gets-the-wrong-judge-200216/

In the United States, federal courts are still being swamped with lawsuits against alleged BitTorrent pirates.

While copyright holders avoid some unfavorable jurisdictions, these companies are a common sight in others, such as Southern Florida.

Over the past year or so, adult entertainment company Strike 3 Holdings has filed dozens of lawsuits in this district. While that’s nothing new, there are some lawsuits that stand out.

In a few instances, Strike 3 dropped their complaints within a day or two, right after the judge was assigned. When we took a closer look, we found out that in each of these cases the same judge is listed: U.S. District Judge Ursula Ungaro.

Judge Ungaro is a familiar name to those who’ve been following these types of piracy lawsuits over the years. More than half a decade ago she issued an order stating that an IP-address doesn’t necessarily identify a person.

Over the years Judge Ungaro remained very skeptical. Among other things, she is not convinced that IP-address geolocation tools are good enough to prove that a person actually resides within the court’s jurisdiction.

This also came up again last year. When Strike 3 applied for a subpoena to identify a person behind an IP-address, the Judge denied the request for this very reason.

“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 reiterated.

With this in mind, one can understand why Strike 3 isn’t too fond of Judge Ungaro. This may also explain why it chooses to simply drop cases as soon as this particular judge is assigned. This is exactly what happened twice in August last year.

In other cases, Judge Ungaro submitted a ‘sua sponte’ motion within a day, asking Strike 3 to provide more evidence before it could even request a subpoena. That happened again this week.

Immediately after a new case was filed, the Judge requested more evidence concerning geolocation accuracy as well as any link between the IP-address and the alleged pirate.

“[T]his Court requires a showing of the precise methodology and technique employed by Plaintiff in its use of geolocation to establish — to a reasonable degree of certainty — that Defendant may be found within this district,” Judge Ungaro wrote.

“Additionally, this Court recognizes that IP addresses are assigned to nodes connected to the Internet, but are not necessarily representative of individual end-node/end-system devices, and especially are not representative of individual people.”

Strike 3 obviously wasn’t happy with this swift response from the Judge. When it spotted the request the case was immediately dismissed. Perhaps the company acted a bit too quickly, as it submitted the dismissal request before replying to the court’s motion, as is required.

The rightsholder noticed this error and submitted its standard response, apologizing for “the confusion.”

Strike 3 didn’t even bother to wait for Judge Ungaro’s response to its reply, however. The end result was that two days after the new case was filed, it had already been dismissed.

With the dismissal granted, the defendant escaped being exposed. That wasn’t the first time either because the same IP-address was among those that were previously targeted in a county court, where the defendant objected to having his or her personal details exposed.

We have no indication that the same person will be targeted again. Since the company has thousands of allegedly-infringing IP-addresses on file it can simply ‘try again’ with the next target, until it gets a more favorable judge.

While Strike 3’s actions may be understandable, some people, and perhaps some courts, may frown upon it.

TorrentFreak spoke to Florida-based attorney Cynthia Conlin who has represented several defendants in these ‘trolling’ lawsuits. She believes that Strike 3 is “Judge Shopping” and may point this out in court.

Although the company may technically color between the lines, Conlin believes that Strike 3 is acting in bad faith, and she hopes that the court will eventually draw the same conclusion.

Source: TF, for the latest info on copyright, file-sharing, torrent sites and more. We also have VPN reviews, discounts, offers and coupons.

Retired Police Officer Wins $47,777 Judgment Against Copyright Troll

Post Syndicated from Ernesto original https://torrentfreak.com/retired-police-officer-wins-47777-judgment-against-copyright-troll-200205/

Lawsuits accusing people of downloading pirated videos through BitTorrent are a common sight in US courts. The phenomenon often dubbed as ‘copyright trolling’ started roughly a decade ago and remains ongoing.

The scheme can be both simple and lucrative. Rightsholders file complaints against “John Does” who are initially only known by an IP-address. They then request a subpoena to obtain the subscriber details and demand a settlement from the account holder.

This is also what happened when adult content producer ‘Strike 3 Holdings’ filed against a John Doe, known by the IP-address 73.225.38.130, more than two years ago.

Strike 3 is one of the most active copyright litigants in the US and has managed to obtain settlements against many accused pirates. However, this case was different. Instead of settling the case the accused account holder, a retired police officer in his 70s, chose to fight back.

The John Doe submitted a counterclaim accusing Strike 3 of abuse of process and “extortion through sham litigation.” The man accused the rightsholder of going on a “fishing expedition,” while knowing that it couldn’t link the subscriber of the IP-address to any specific infringement.

Following this pushback Strike 3 decided to dismiss its copyright infringement claim. However, the defendant wasn’t willing to let the case go. The retired police officer pushed on and requested a summary judgment to set in stone that he’s not a copyright infringer and to have his costs compensated.

This week U.S. District Judge Thomas Zilly ruled on the matter, deciding in favor of the falsely accused ‘pirate.’ According to the evidence presented before the court, Strike 3 can’t prove that the man copied any of the company’s movies.

While Strike 3’s evidence initially suggested that the file “hashes” referred to the actual movie file, the company later admitted that these were merely BitTorrent “info hashes” that point to torrent metadata instead.

“In other words, the referenced ‘Info Hash’ does not identify the actual motion picture that John Doe is accused of infringing, but merely the means by which the BitTorrent program can find the motion picture among the files of all of the computers connected to the BitTorrent network,” Judge Zilly writes.

In this case, Strike 3 bears the burden of proof for the alleged copyright infringements and based on the provided evidence, that standard wasn’t met. At most, the company can show that ‘someone’ with IP address 73.225.38.130 downloaded ‘some things’ that are identified by a series of hash sequences.

“A core element of copyright infringement is a ‘copying’ of the protected components of the work. Strike 3 has provided no evidence that John Doe copied any of Strike 3’s copyrighted motion pictures,” the order reads.

“Strike 3 cannot link John Doe to the activity associated with the IP address and it has now abandoned any assertion that the items allegedly transferred over the BitTorrent system were themselves copyrighted motion pictures or viewable pieces thereof,” Judge Zilly adds.

This finding is further backed up by an expert who reviewed the computer of the retired police officer, including many deleted files. This examination failed to find any of the allegedly infringed movies.

As such, the court concludes that ‘John Doe’ hasn’t downloaded any infringing material. In addition to clearing his name, the court also awarded attorney’s fees and costs, which have to be paid by the rightsholder.

Strike 3 asked the court to deny this request but Judge Zilly argued that this would improperly reward the company for using its suspicious litigation script, also known as copyright trolling.

Instead, the court ordered Strike 3 to pay the requested $40,501.63 in attorney’s fees and $7,275.63 in additional costs, totaling $47,777.26.

John Doe’s attorney, J. Curtis Edmondson, is happy with the outcome. It saves his client a lot of money and could also help others who are in a similar position.

“Any client who is sued by Strike 3 has potential exposure that starts in the tens of thousands of dollars, Edmondson tells TorrentFreak.

“For my retired client, this means he does not risk what he has saved for his retirement. That alone would take a lot of stress off someone, retired or not.”

In the broader picture, the order confirmed that Strike 3’s initial evidence claims, which are used to obtain subpoenas from ISPs, are not always sufficient to find an infringing movie on a hard drive.

In this case, the court also denied a wholesale inspection of the John Doe’s hard drive, limiting it to “hash values” only, which means that there’s insufficient evidence to prove actual copyright infringement.

A copy of U.S. District Judge Thomas Zilly’s judgment is available here (pdf) and the associated order can be found here (pdf).

Source: TF, for the latest info on copyright, file-sharing, torrent sites and more. We also have VPN reviews, discounts, offers and coupons.

Copyright Troll Back in Federal Court After it Fails to ‘Save Judicial Resources’

Post Syndicated from Ernesto original https://torrentfreak.com/copyright-troll-back-in-federal-court-after-it-fails-to-save-judicial-resources/

Last week we reported that Strike 3 Holdings, the most active copyright litigant in the US, had stopped filing new lawsuits in federal courts.

A few days later we found out that the adult entertainment company hadn’t really halted its efforts. Instead, it had moved to a Florida state court where it targeted dozens of alleged copyright infringers at once.

This maneuver is controversial. Copyright cases are a matter of federal law and generally don’t belong in state courts. However, Strike 3 filed their cases as a complaint for “a pure bill discovery.”

This means that, instead of filing a copyright complaint, it asked the court to allow it to request subpoenas against ISPs to identify the alleged pirates. That information can then ‘possibly’ be used to file a federal case. Or it can be used to directly demand settlements from alleged infringers.

The advantage of the latter option is that Strike 3 can target dozens if not hundreds of alleged pirates in a single case. This saves tens of thousands of dollars in filing fees, as many federal courts only allow one defendant per case.

The move to state courts has prompted objections from various copyright attorneys. They argue that these cases don’t belong in state court and, as we highlighted a few days ago, the general belief is that Strike 3 is taking this route to save money.

The company itself sees things differently. Just days after we pointed out the lack of action in federal courts, the company filed a handful of new cases. However, these come with a twist.

The new cases we spotted specifically target IP-addresses that are associated with subscribers who objected to Strike 3’s state court shortcut. The timing, which coincides with our reporting, is interesting, and so are Strike 3’s arguments.

In the new complaints, the company states that it took its cases to state court to save “judicial resources” at the federal court. That the same move also saves tens of thousands of dollars in legal costs for the company itself isn’t mentioned.

“In an effort to conserve Federal judicial resources, Strike 3 originally moved to discover Defendant’s identity utilizing a state court procedure in Florida where Strike 3’s infringement detection servers are located,” Strike 3 writes (pdf).

“Defendant objected asserting that the action is more properly litigated in the federal court of his or her domicile. Because Plaintiff is amenable to litigating the matter in either forum, this suit was initiated,” the company adds.

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Strike 3’s suggestion that it merely wanted to help bring down the caseload at the federal court is something many skeptics will doubt. Whether it’s true or not, it does reveal that the company didn’t intend to file federal cases against all defendants.

After all, that would ultimately result in the same caseload for the federal court.

In other words, the plan was to reveal the identity of alleged pirates through the state court without filing a copyright case. The company could then use that information to extract settlements from these defendants, for a fraction of the time and costs at the federal court.

But apparently the costs reduction is just a by-product. The real goal here, according to Strike 3, was to conserve federal judicial resources.

Source: TF, for the latest info on copyright, file-sharing, torrent sites and more. We also have VPN reviews, discounts, offers and coupons.

‘Copyright Troll’ Bypasses Federal Court To Get ‘Cheap’ Piracy Settlements

Post Syndicated from Ernesto original https://torrentfreak.com/copyright-troll-bypasses-federal-court-to-get-cheap-piracy-settlements-191213/

Earlier this week we reported on a notable finding. For some reason, the two most active copyright litigants in the US had stopped filing new lawsuits in federal courts.

Instead of seeing hundreds of new cases each month targeting alleged BitTorrent pirates, there were none.

While the reason for this hiatus is unknown, we can now confirm that at least one of the companies hasn’t halted its efforts at all. Instead, it changed the venue, which isn’t without controversy.

In the U.S, copyright-related court cases are exclusively a matter of federal law, which is something every first-year law student knows. You can’t bring a copyright suit in state court, period. However, that’s exactly where Strike 3 has moved.

After filing over 1,000 cases in federal courts earlier this year, the adult entertainment company moved its activities to a Florida state court. In recent weeks, it has filed more than a dozen new cases.

Although these cases relate to copyright infringement, Strike 3 submits them as a complaint for “a pure bill discovery.” This essentially means that it asks the court to give it the right to figure out who the defendants are.

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.

Another advantage is that the company doesn’t have to deal with the federal courts that are increasingly reluctant to grant discovery. Just a few weeks ago, Strike 3 was denied a subpoena, for example.

The question is whether this shortcut is appropriate. While we have seen it being used in Florida a few years ago, it certainly isn’t common. And this time there is pushback as well.

TorrentFreak spoke to several attorneys who represent defendants in these cases. They believe that Strike 3 is wrong to use the state court for this purpose. However, in several cases, the Miami-Dade County Court has already granted subpoenas against a variety of ISPs, including AT&T and Comcast.

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.

“In fact, Plaintiff’s failure to allege that Defendant has sufficient contacts with the state of Florida or is a Florida resident is likely a purposeful omission as Defendant is not a resident of Florida,” the motion to quash reads, showing that the IP-address is linked to Minnesota.

TorrentFreak spoke to Florida-based attorney Cynthia Conlin who has dealt with these ‘trolling’ lawsuits, both in federal and state court. She believes that Strike 3 has moved its efforts to the Miami-Dade County court in an attempt to save costs.

“The most obvious advantage in filing a multi-doe case is economic. Strike 3 need only pay a single filing fee to obtain identifying information for several dozen defendants, as opposed to $400 for each single-doe federal lawsuit,” Conlin says.

In federal courts, these cases typically include one defendant. So filing 50 cases would cost $20,000 in filing fees alone. In the recent state court cases, all defendants are grouped in a single case, which is much cheaper.

“By filing multi-doe suits, Strike 3 is increasing its odds of receiving settlements exponentially. So far it has filed 17 lawsuits in Miami-Dade County, and counting,” Conlin notes.

While Conlin doesn’t believe that these cases are allowed in state courts, judges often sign off on the subpoenas since they are not well-versed in copyright litigation. This is a loophole Strike 3 tried to exploit.

“Strike 3 would not be able to get away with filing a multi-doe lawsuit in federal court. Mass-doe cases have been done before in many federal jurisdictions, and the federal courts will no longer allow them. State court is the only place Strike 3 can get away with it,” she says.

This isn’t the first time this maneuver has been carried out. A few other companies have done so and some argue that it’s a win-win for all, as it can result in lower settlements as well.

Conlin and other defense attorneys don’t buy that and will continue to file motions to quash. At the time of writing, the Miami-Dade County Court has yet to rule on these subpoenas.

Source: TF, for the latest info on copyright, file-sharing, torrent sites and more. We also have VPN reviews, discounts, offers and coupons.

Most Active Copyright Trolls Have Stopped Filing U.S. Piracy Lawsuits, For Now

Post Syndicated from Ernesto original https://torrentfreak.com/most-active-copyright-trolls-stopped-filing-u-s-piracy-lawsuits-for-now-191211/

While most piracy activity has shifted to streaming in recent years, U.S. courts have still been overloaded with BitTorrent related piracy lawsuits.

This phenomenon, often dubbed as copyright trolling, started roughly a decade ago and remains ongoing.

This scheme can be both simple and lucrative. Rightsholders file complaints against “John Does” who are initially only known by an IP-address. They then request a subpoena to obtain the subscriber details and demand a settlement from the account holder.

In recent years, the vast majority of the U.S. lawsuits were filed by two adult entertainment companies; Strike 3 Holdings and Malibu Media. Together, they filed over 3,300 new cases last year, which was an all-time record.

Initially, it appeared that they would continue on the same course this year. During the summer we reported that Strike 3 alone had already filed over a thousand new complaints. However, in recent months that changed drastically.

Looking through the federal court records we noticed that there was a notable absence of new cases from both Strike 3 Holdings and Malibu Media. Instead of filing hundreds of new cases, both companies haven’t been active for weeks.

Strike 3 filed its latest complaint in early August, more than four months ago. Malibu Media had its latest filing spree in August as well and only submitted seven new complaints after that, most recently in October.

 

Strike 3’s latest cases

The sudden halt in activity is remarkable, especially since both companies have different legal teams. It’s also a clear deviation from previous years. However, there’s no clear explanation for the hiatus, nor do we know how long it will last.

It could be that the companies are awaiting the outcome of certain legal proceedings. For example, in a few cases this year the court denied expedited discovery. This makes it impossible for the rightsholders to obtain the personal details of infringers.

Strike 3 has appealed that ruling and may await its outcome before filing any new cases, to prevent wasting filing fees.

In addition, there is the Ninth Circuit Court of Appeals ruling from last year in the Cobbler Nevada v. Gonzales case. In that matter, the Court ruled that identifying the registered subscriber of an IP-address is by itself not enough to argue that this person is also the infringer.

This Appeals Court ruling has also proven to be a setback for both Malibu Media and Strike 3 Holdings.

Whether these legal developments are indeed a factor is unknown. Whatever the reason may be, we can already conclude that the all-time record for file-sharing cases in the U.S. won’t be broken this year. The current total is still under 2,000, with just three more weeks to go.

Source: TF, for the latest info on copyright, file-sharing, torrent sites and more. We also have VPN reviews, discounts, offers and coupons.

US Court Shields Internet Subscribers From Futile Piracy Complaints

Post Syndicated from Ernesto original https://torrentfreak.com/us-court-shields-internet-subscribers-from-futile-piracy-complaints-191028/

For more than a decade, alleged file-sharers around the world have been pressured to pay significant settlement fees.

These so-called ‘copyright-trolling’ efforts are pretty straightforward. Copyright holders obtain a list of ‘pirating’ IP-addresses and then request a subpoena from the court, compelling ISPs to hand over the associated customer data.

This scheme can be rather lucrative. With minimal effort, rightsholders can rake in hundreds or thousands of dollars per defendant. That is, if a court grants expedited discovery, allowing the companies to request the personal details of alleged infringers from ISPs.

In the past, it has been relatively easy to pursue these cases, but the tide is slowly turning. Most prominent was a Ninth Circuit Court of Appeals ruling from last year in the Cobbler Nevada v. Gonzales case. Here, the court ruled that identifying the registered subscriber of an IP-address is by itself not enough to argue that this person is also the infringer.

While the Cobbler case wasn’t about a subpoena request, it certainly said something about the strength of the underlying complaints.

As the most prolific filer of piracy lawsuits in the US, Strike 3 Holdings has come under fire as well. For example, last November Columbia District Judge Lamberth accused the company of being a “copyright troll,” that uses “famously flawed” technology to prey on “low-hanging fruit,” flooding the
courthouse “with lawsuits smacking of extortion.”

That didn’t stop Strike 3, which produces adult content, from continuing its legal campaign. The company filed has more than 1,150 lawsuits already this year, many of which are believed to have resulted in profitable settlements. However, there have been setbacks as well.

Last week, New Jersey District Court Magistrate Judge Joel Schneider denied Strike 3 expedited discovery in four cases. This means that it’s not allowed to subpoena ISPs for the personal details of account holders whose IP-addresses were used to share pirated videos via BitTorrent.

In a very detailed 47-page opinion, the Judge takes apart various aspects of Strike 3’s enforcement efforts. He makes it clear that these cases should not be allowed to go forward, as the complaints are futile.

“The most fundamental basis of the Court’s decision is its conclusion that, as pleaded, Strike 3’s complaints are futile. The Court denies Strike 3 the right to bootstrap discovery based on a complaint that does not pass muster,” Judge Schneider writes.

The futility lies in the fact that the complaints themselves include very few facts. The only thing that the company really knows is that an IP address is associated with downloading copyrighted works. Strike 3 doesn’t know whether the subscriber is involved in the actual infringements.

Courts have previously ruled both in favor and against allowing discovery to expose the account holders in these situations, but the New Jersey Court clearly sides with the latter.

“The Court sided with the cases that hold it is not sufficient to merely allege in a pleading that the defendant is a subscriber of an IP address traced to infringing activity. Consequently, the Court will not authorize Strike 3 to take discovery premised on a futile John Doe complaint.”

The decision is partly based on the aforementioned “Cobbler” ruling of the Ninth Circuit Court of Appeals. However, the Court makes it clear that even if there was a properly pleaded infringement claim, the requests for expedited discovery would still be denied.

In the opinion, Judge Schneider sums up the other issues as follows:

(1) Strike 3 bases its complaints on unequivocal affirmative representations of alleged facts that it does not know to be true.
(2) Strike 3’s subpoenas are misleading and create too great of an opportunity for misidentification.
(3) The linchpin of Strike 3’s good cause argument, that expedited discovery is the only way to stop infringement of its works, is wrong.
(4) Strike 3 has other available means to stop infringement besides suing
individual subscribers in thousands of John Doe complaints.
(5) The deterrent effect of Strike 3’s lawsuits is questionable.
(6) Substantial prejudice may inure to subscribers who are misidentified.
(7) Strike 3 underestimates the substantial interest subscribers have in the constitutionally protected privacy of their subscription information.

For example, Strike 3 has argued that these cases do not really raise any substantial privacy concerns, but the Court clearly disagrees. Being named in a lawsuit is an invasion of people’s constitutional privacy rights, which should not be underestimated.

“[G]iven the expansive view of individual privacy under New Jersey law, there should be a good reason before subscriber information is turned over. This is especially true in a situation where questionable averments are relied upon to obtain discovery,” Judge Schneider writes.

Another point the Judge brings up is Strike 3’s claim that it has no other available means to stop copyright infringements. According to the Court, this is not true. The DMCA allows the company to send takedown notices to ISPs, but Strike 3 doesn’t use this option.

While the company is by no means required to issue takedown notices, the Court finds it unreasonable for Strike 3 to argue that it has no other options when it ignores the DMCA.

“One would think that Strike 3 would be eager to notify ISPs that its subscribers are infringing their copyrights, so that an infringer’s internet service would be interrupted, suspended or terminated and infringement would stop. However, Strike 3 does not take this simple step but instead files thousands of lawsuits arguing that it has no other recourse to stop infringement,” Judge Schneider writes.

Even if Strike 3 believes that these notices don’t have any direct effect, it could at least try. If an ISP willfully ignores DMCA notices or fails to follow its repeat infringer policy, it could even consider suing the Internet provider, as other rightsholders have done, the Court adds.

Adding to that, Judge Schneider points out that the current legal campaigns against individual file-sharers are not very effective. There doesn’t seem to be a substantial deterrent effect, as Strike 3 admits that the infringements of its works have only increased.

All in all the Court sees no other option than to deny the request for expedited discovery. This is good news for the people who were targeted by these lawsuits, as they won’t be identified. At the same time, it means that Strike 3 can’t continue these cases, as it can’t name a defendant.

The Court realizes that this makes it nearly impossible to track down the alleged infringers, but sometimes that’s how the law works.

“The Court is not unmindful that its ruling may make it more difficult for Strike 3 to identify copyright infringers. To the extent this is the price to pay to assure compliance with the applicable law, so be it,” Judge Schneider writes.

“A legal remedy does not exist for every wrong, and it is unfortunately the case that sometimes the law has not yet caught up with advanced technology. This is not the first time, nor will it be the last, where a party who believes it was wronged was denied discovery,” he adds.

A copy of the full opinion issued by US Magistrate Judge Joel Schneider is available here (pdf).

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‘Copyright Troll’ Files Over 1,000 Piracy Lawsuits in Half a Year

Post Syndicated from Ernesto original https://torrentfreak.com/copyright-troll-files-over-1000-piracy-lawsuits-in-half-a-year/

While most piracy activity has shifted to streaming in recent years, US courts are still overloaded with BitTorrent related lawsuits.

This phenomenon, often dubbed as copyright trolling, started roughly a decade ago and remains ongoing.

The process is fairly simple. Rightsholders file complaints against “John Does,” who are initially only known by an IP-address. They then request a subpoena to obtain the subscriber details from the associated ISP, which are then used to request a settlement.

This ‘revenue’ model has been widely criticized and increasingly courts have become more reserved as well. Last year, there was an important Appeals Court ruling which clarified that rightsholders need “something more” than an IP-address alone, to make their case.

Nonetheless, the traditional boilerplate complaints are far from over. This week we decided to take a look at the number of file-sharing lawsuits filed in the first half of 2019. This showed that one company has been particularly active.

The adult entertainment production company Strike 3 Holdings, which distributes its adult videos via the Blacked, Tushy, and Vixen websites, takes the crown. In the first six months of this year, it filed 1,071 complaints. That’s up from last year when it filed 976 new cases in the same period.

Strike 3 filings

The second most litigious rightsholder is Malibu Media, another adult entertainment outfit. The company, known for its X-Art brand, has been an established player in US courts for a few years. During the first half of 2019 it filed 337 new cases, which is down from 681 last year.

Aside from the two adult companies, there were also some regular movie companies active. Hunter Killer Productions, for example, filed 25 cases, Bodyguard Productions was good for 16, and LHF Productions added three new complaints.

All filers have been active in previous years as well, so there aren’t any surprises on that front.

While there have been slightly fewer cases than in the first half of 2018, this year has already surpassed the total number of piracy lawsuits that were filed in 2017, which were little over 1,000. Whether last year’s record high of more than 3,300 new cases will be broken, has yet to be seen.

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Retired Police Officer Wants $48,773 from Copyright Troll

Post Syndicated from Ernesto original https://torrentfreak.com/retired-police-officer-wants-48773-from-copyright-troll-190802/

Every year so-called copyright trolls sue thousands of BitTorrent users in the US. While most cases don’t make the news, every now and then one stands out.

This is true for the lawsuit adult content producer ‘Strike 3 Holdings’ filed against a John Doe, known by the IP-address 73.225.38.130, two years ago.

Strike 3 is the most active copyright litigant in the US at the moment. While the company has managed to obtain many settlements against accused pirates, this case was different. The defendant, a retired police officer in his 70s, decided to fight back.

The defendant submitted a counterclaim accusing Strike 3 of abuse of process and “extortion through sham litigation.” The man accused the rightsholder of going on a “fishing expedition,” while knowing that it couldn’t link the subscriber of the IP-address to any specific infringement.

While this counterclaim was denied by the Court, Strike 3 previously said that it was willing to declare that the defendant didn’t infringe its works. As such, the Court encouraged both parties to file a proposed judgment, which would also cover what costs and fees the copyright holder must pay, if any.

Over the past weeks, the parties tried to reach an agreement, but they failed to do so. As a result, this week the accused pirate submitted a motion for summary judgment to set in stone that he’s not a copyright infringer and to have his costs compensated.

The defendant’s attorney, J. Curtis Edmondson, notes that this case made his client potentially liable for an astronomical figure of $13,050,000.00, the maximum statutory damages for the 87 works his client supposedly shared.

However, the attorney points out that there is no evidence that this is the case. On the contrary, the defense argued that the tracking software used by Strike 3 is clearly flawed, as an expert report shows.

“This is the first case that has investigated the technical underpinnings of Strike 3’s dubious claims of infringement that have been replicated nationwide,” Edmondson writes.

“Strike 3 may have an interest in protecting its copyrights, but that interest should be counterweighed against the high false positive rate and the fact the software used to detect the infringements is not ‘forensic software’,” the attorney adds.

Apparently, one of Strike 3’s own experts, Patrick Paige, stated in a deposition that Strike 3 has no actual knowledge that the evidence tracking software (IPP) ‘works’. On top of that, an expert who analyzed the hard drive of the defendant found no evidence that any of the pirated files were stored on his computer.

Based on this, and various other arguments, the defendant asks the Court to grant summary judgment, confirming that he didn’t infringe any copyrights. In addition, the retired police officer asks the Court to award attorney fees and costs, totaling $48,773.13.

In summary, the defendant’s attorney equates the current case to the controversial dealings of Elizabeth Holmes and her now-defunct company Theranos. The young entrepreneur, a Stanford dropout, was lauded as the next Steve Jobs for inventing a revolutionary blood testing machine.

However, after several years of convincing many Silicon Valley investors, as well as the public at large, it turned out that there was no evidence that her machines actually worked.

“This is the first case where a ‘John Doe’ has had to expose the Potemkin village known as the ‘IPP Software.’. Like Theranos, there has been no independent validation studies and no evidence that the IPP Software is ‘forensic software’,” Edmondson writes.

The case is now back in the hands of the Court which will determine whether the defendant is indeed entitled to summary judgment and the requested compensation.

A copy of the motion for summary judgment of noninfringement of copyrights and award attorney fees and costs is available here (pdf).

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Court Denies Abuse of Process Claim Against Copyright Troll

Post Syndicated from Ernesto original https://torrentfreak.com/court-denies-abuse-of-process-claim-against-copyright-troll-190725/

Every year, so-called ‘copyright trolls’ sue thousands of people in the United States for online file-sharing, mostly through BitTorrent.

These companies target people whose connections were allegedly used to download and share infringing videos, in the hope of obtaining a significant financial settlement.

While many of the defendants may indeed be guilty, a number of accused Internet subscribers have done nothing wrong. This is also what a John Doe, known by the IP-address 73.225.38.130, has repeatedly argued before a federal court in Seattle, Washington.

The defendant in question was sued by Strike 3 Holdings late 2017. In common with other defendants, the man was offered a settlement to let the case go, but instead, he went on the offensive.

When the man pushed back, Strike 3 Holdings was ready to let the case go. The company filed a motion to voluntarily dismiss all claims but the defendant, a 70+-year-old retired policeman, wasn’t willing to let them. At least not without getting paid.

The defendant submitted a counterclaim accusing Strike 3 of abuse of process and “extortion through sham litigation.” The man accused the rightsholder of going on a “fishing expedition,” while knowing that it couldn’t link the subscriber of the IP-address to any specific infringement.

As part of this fishing expedition, the rightsholder also allegedly misused the discovery process to explore whether the man’s son, other family members or friends engaged in any infringement activity.

Strike 3, for its part, moved for summary judgment asking the court to dismiss that counterclaim. The company stressed that it did nothing wrong and merely wanted to find out who the real infringer was.

After reviewing the positions from both sides, US District Judge Thomas Zilly decided to dismiss the abuse of process claim.

The defendant argued that an IP-address alone is not enough to identify an infringer. This is in part based on an Appeal Court ruling that came in after Strike 3 had voluntarily dismissed its infringement claim. As such, the company can’t be judged by this standard, Judge Zilly argues.

In addition, Strike 3’s efforts to go after the man’s son and other family members are no grounds for abuse of process either, the Court ruled.

“Strike 3 was entitled to pursue a theory of defense that another member of defendant’s household or someone with access to defendant’s IP address had infringed one or more of Strike 3’s motion pictures via the BitTorrent network, which would undermine defendant’s allegation that Strike 3’s copyright infringement claim was frivolous and asserted for purely extortionist or other improper purposes,” the Judge notes.

The ruling is a setback for the defendant, but it’s not the end of the case yet. The retired police officer has also requested a declaratory judgment that he has not himself infringed any of Strike 3’s copyrighted works. This request remains pending and the court has instructed both parties to reach an agreement.

Strike 3 previously said that it was willing to declare that the defendant didn’t infringe its works and Judge Zilly encouraged the parties to file a proposed judgment on what costs and fees the copyright holder must pay, if any.

“With respect to attorney’s fees and costs, the parties shall attempt to reach agreement concerning whether and, if so, how much defendant should receive, bearing in mind that, under the Copyright Act, attorney’s fees are discretionary, and the Court may decline to award them,” Judge Zilly writes.

At the time of writing a proposed judgment has yet to be submitted. Whether Strike 3 is willing to pay (part) of the fees and costs remains to be seen. If both parties can’t come together, the Judge will have the final say.

A copy of United States District Judge Thomas Zilly’s order is available here (pdf).

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Retired Police Officer and ‘Copyright Troll’ Square Off in Court

Post Syndicated from Ernesto original https://torrentfreak.com/retired-police-officer-and-copyright-troll-square-off-in-court-190626/

Strike 3 Holdings, one of the most active copyright trolls in the United States, has filed cases against thousands of alleged BitTorrent pirates in recent years.

While many of the defendants may indeed be guilty, quite a few of the accused Internet subscribers have done nothing wrong.

This is also what a John Doe, known by the IP-address 73.225.38.130, has repeatedly argued before a federal court in Seattle, Washington.

The defendant in question was sued by Strike 3 Holdings late 2017. In common with other defendants, the man was offered a settlement to let the case go, but instead, he went on the offensive.

As it turns out, the adult company picked a fight with a 70+-year-old retired police officer, who lawyered up to fight back.

Following some initial pushback in court, Strike 3 Holdings was ready to let the case go. The company filed a motion to voluntarily dismiss all claims in August, but the former policeman wasn’t willing to let them. At least, not without getting paid.

The defendant moved for a declaratory judgment of non-infringement, submitting a counterclaim accusing Strike 3 of abuse of process and “extortion through sham litigation.” Strike 3, for its part, moved for summary judgment asking the court to dismiss that counterclaim.

Over the past months, both parties have conducted discovery, hoping to bolster their positions ahead of a trial that’s scheduled for later this year.

The retired police officer, for example, has asked for a copy of the source code of Strike 3’s BitTorrent tracking software IPP. The court granted this request in part and allowed the defendant to issue a subpoena requesting a copy of the software’s source code. Thus far, however, that hasn’t happened.

This week the defendant, therefore, submitted a second motion, requesting a copy of the code. Or if that’s not an option, the court should exclude any evidence that’s based on it.

“It is not Doe’s burden to prove the software is forensically sound. That is Strike 3’s burden. At this point, Strike 3 is playing ‘hide the ball’. If Strike 3 does not comply with the Subpoena, then the IPP Code and any data relying upon it should be excluded as unreliable,” the motion to compel (pdf) reads.

In addition, the retired police officer also submitted a supplemental response to Strike 3’s motion for summary judgment. Among other things, his attorney points out that, instead of naming the defendant, Strike 3 went on a “fishing expedition” to find out who else could be the infringer.

The ‘initially’ accused alleged pirate points out that, based on the IPP software, Strike 3 can never prove that he downloaded a full copy of its works, accusing the company of abuse of process by going after third parties instead.

The defendant’s argument is that the complaint was unjustified and that Strike 3 knew this.

“Despite blatant and unequivocal allegations in their motion for early discovery that Doe is the infringer, and that full copies of Strike 3’s works were downloaded, Strike 3 knew that their investigator could never prove that Doe had downloaded entire films, and that they might not have the right defendant.

“Both of these facts are material to whether a court might find good cause for early discovery. Yet Strike 3 disclosed neither. Nor did Strike 3 disclose, contrary to their motion, that they intended to investigate third parties other than Doe. Strike 3’s conduct constitutes abuse of process,” the Doe defendant adds (pdf).

However, the adult content producer disagrees.

The third party, in this case, is the son of the retired police officer. According to Strike 3, this may be the person who downloaded its adult movie. At least, according to information it obtained during discovery, including a deposition of the son.

“Through the litigation process, Plaintiff has uncovered a substantial amount of evidence confirming the validity of its original Complaint and IPP’s system – evidence which Defendant has improperly sought to withhold from discovery,” Strike 3 argues (pdf).

The aforementioned passage comes from Strike 3’s motion to compel the defendant to allow one of his hard drives to be images and inspected. The hard drive in question was used by the son and taken out of a computer that was previously sold.

During the deposition, the son admitted that he used the computer, which had uTorrent installed on it, to access The Pirate Bay through which he downloaded adult content. This also happened during the time of the alleged copyright infringement.

According to Strike 3, this could be the “smoking gun” which shows that its original complaint, based on IPP’s evidence, was justified.

“The Son’s deposition testimony clearly makes this Hard Drive relevant and may, indeed, be the literal ‘smoking gun’ demonstrating that Plaintiff’s initial suit was entirely justified, and Defendant’ counterclaims are nothing less than a fraud upon the Court,” Strike 3 writes.

The various court filings and additional arguments make it clear that both sides are working hard to make this case go in their favor.

The court has yet to review the arguments and rule on the motions. After discovery is completed, the case is expected to go to trial. Both parties have indicated they prefer a bench trial, instead of a trial by jury.

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Judge: Number of ‘Unprovable’ Piracy Cases is Alarmingly High

Post Syndicated from Ernesto original https://torrentfreak.com/judge-number-of-unprovable-piracy-cases-is-alarmingly-high-190513/

By filing thousands of lawsuits over the past two years, Strike 3 Holdings swiftly became one of the most active copyright litigants in the U.S.

These cases target people whose Internet connections were allegedly used to download and share copyright infringing content via BitTorrent. In the case of Strike 3, that’s adult content. 

As is common in these lawsuits, Strike 3 only knows the defendant by an IP-address. It then asks the courts to grant a subpoena, allowing it to ask Internet providers for the personal details of the alleged offenders so it can send a settlement request.

There has been some pushback against these requests in certain courts. In the Eastern District of New York, for example, U.S. Magistrate Judge James Orenstein slammed on the brakes recently 

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.

The thirteen cases

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.”

Strike 3 was willing to give the Court assurances by accepting procedural safeguards on how the subpoenaed information can be used. However, considering the company’s history of avoiding judicial oversight, Judge Orenstein prefers not to issue any subpoenas at all. 

And there are more factors at play here. The order mentions that, if subpoenas are issued, it’s likely that Strike 3 will not use the account holders’ details to litigate these cases in court. That’s also backed up by the information the rightsholder shared with the Court. 

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.

From the order

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.

This means that Strike 3 is listing many people as Doe defendants, while it knows that quite a few of these are not the actual infringers.

“It is thus apparent that Strike 3 is deliberately asserting claims in a scattershot fashion against a broad array of individuals simply because it is confident that many of them will be liable – even if almost as many of them are not,” the order reads.

This seems to contradict the requirement that copyright holders should have good faith belief in the merit of their claim. While that’s not a violation of the federal rules per se, the Judge sees it as a reason not to issue the subpoenas. 

After all, it is clear that these type of lawsuits are also targeting innocent subscribers.

“While I do not suggest that suing three people because two of them probably committed a provable copyright violation is a technical violation of Rule 11, the certainty that such an approach will impose needless burdens on innocent individuals counsels against a finding of good cause to permit expedited discovery,” the order reads.

Strike 3 also argued that these type of lawsuits are needed to deter others from engaging in copyright infringement. However, the court waved away this argument as well.

Similarly, Judge Orenstein disagrees with Strike 3’s argument that it will be unable to enforce its copyrights if a subpoena is not granted. While this concern is valid, the Judge believes that these types of cases are not the answer, as they are plainly inefficient.

With the latter comment, the order references the work of Idaho Law Professor Annemarie Bridy, who previously published a paper explaining that litigation is not a scalable mechanism to deal with this type of copyright infringement.

In summary, the order delivers a devastating blow to Strike 3 and adds to the recent criticism of these types of lawsuits. If all judges ruled the same way, so-called copyright trolling practice would be finished. However, that’s not the case just yet.

A copy of the order, which dates back a few weeks and has mostly been flying under the radar, is available here (pdf)

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Judge: IP-Address Doesn’t Locate or Identify a BitTorrent Pirate

Post Syndicated from Ernesto original https://torrentfreak.com/judge-ip-address-doesnt-locate-or-identify-a-bittorrent-pirate-190509/

Since the start of this decade, hundreds of thousands of alleged BitTorrent pirates have been sued by so-called ‘copyright trolls’ in the United States.

The select group of rightsholders that file these cases generally rely on an IP address as evidence. They then ask the courts to grant a subpoena, ordering Internet providers to hand over the personal details of the associated account holder.

While some judges have refused to do so in the past, many District Courts still issue these subpoenas. However, over the years judges have grown more skeptical about the provided evidence. This includes Florida District Court Judge Ursula Ungaro.

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.

Responding to this order to show cause, Strike 3 explained that it used Maxmind’s database to link the IP-address to Internet provider Cogeco and a location in Southern Florida.  According to Maxmind, its IP address tracing service is roughly 95% accurate in the US, so the rightsholder is confident that it filed the case in the right court.

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 was not good enough for Judge Ungaro. In an order released this week she writes that, other than stating that it’s “plausible” that the infringer can be identified through the IP-address, Strike 3 failed to explain how the geolocation software can properly identify or locate the actual infringer.

“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.

Strike 3 stressed that many courts have issued subpoenas based on the exact same evidence. While that is true, the Judge counters that other courts, which also doubted the strength of an IP-address as evidence, have refused to do so.

In this instance, the Court finds that Strike 3 hasn’t provided sufficient evidence to argue that it can reasonably rely on the usage of geolocation to establish the identity of the accused downloader. Nor does it prove that the person lives in the Court’s jurisdiction.

As a result, the Court refused to issue a subpoena and dismissed the case against IP-address 72.28.136.217 for improper venue. The case is closed and Strike 3 won’t get the opportunity to refile.

While not all judges may come to the same conclusion, the order is a setback for Strike 3 and other rightsholders. They clearly have to come up with other arguments or evidence if their case is handled by this Judge.

But that shouldn’t really come as a complete surprise, as Judge Ungaro has issued similar orders in the past.

A copy of Judge Ursula Ungaro’s order, pointed out to us by SJD, is available here (pdf).

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