United States District Court, District of Columbia
MEMORANDUM OPINION
ROYCE
C. LAMBERTH UNITED STATES DISTRICT JUDGE
Strike
3 Holdings, LLC produces "award winning, critically
acclaimed adult motion pictures." Compl. ¶ 2. Or,
as the Miami Herald describes, it is "[t]he
Steven Spielberg of porn." Adiel Kaplan, The Steven
Spielberg of Porn Sues to Make Floridians Stop Pirating His
Raunchy Videos, Miami Herald (July 12, 2018, 4:48 PM),
https://www.miamiherald.com/news/local/ article214634930.
html.
Strike
3 is also a copyright troll. Its swarms of lawyers hound
people who allegedly watch their content through Bittorrent,
an online service enabling anonymous users to share videos
despite their copyright protection. Since Bittorrent masks
users' identities, Strike 3 can only identify an
infringing Internet protocol (IP) address, using geolocation
technology to trace that address to a jurisdiction. This
method is famously flawed: virtual private networks and onion
routing spoof IP addresses (for good and ill); routers and
other devices are unsecured; malware cracks passwords and
opens backdoors; multiple people (family, roommates, guests,
neighbors, etc.) share the same IP address; a geolocation
service might randomly assign addresses to some general
location if it cannot more specifically identify another.
See, e.g., James Temple, Lawsuit Says
Grandma Illegally Downloaded Porn, S.F. Chron. (July 15,
2011, 4:00 AM), https:// www. sfgate.
com/business/article/Lawsuit-says-grandma-illegally-downloaded-porn-235472O.php.
Simply put, inferring the person who pays the cable bill
illegally downloaded a specific file is even less trustworthy
than inferring they watched a specific TV show. But in many
cases, the method is enough to force the Internet service
provider (ISP) to unmask the IP address's subscriber. And
once the ISP outs the subscriber, permitting them to be
served as the defendant, any future Google search of their
name will turn-up associations with the websites Vixen,
Blacked, Tushy, and Blacked Raw. The first two
are awkward enough, but the latter two cater to even more
singular tastes.
Little
wonder so many defendants settle. Indeed, the copyright
troll's success rate comes hot from the Copyright Act,
but from the law of large numbers. According to PACER, over
the past thirteen months, Strike 3 has filed 1849 cases just
like this one in courts across the country-forty in this
district alone-closely following the copyright trolls who
together consumed 58% of the federal copyright docket in
2015. These serial litigants drop cases at the first sign of
resistance, preying on low-hanging fruit and staying one step
ahead of any coordinated defense. They don't seem to care
about whether defendant actually did the infringing, or about
developing the law. If a Billy Goat Gruff moves to confront a
copyright troll in court, the troll cuts and runs back under
its bridge. Perhaps the trolls fear a court disrupting their
rinse-wash-and-repeat approach: file a deluge of complaints;
ask the court to compel disclosure of the account holders;
settle as many claims as possible; abandon the rest.
See Matthew Sag & Jake Haskell, Defense
Against the Dark Arts of Copyright Trolling, 103 Iowa L.
Rev. 571, 575-80 (2018); see also infra text
accompanying notes 1-4
Here,
that approach led Strike 3 astray. Because Strike 3's
need for discovery does not outweigh defendant's privacy
expectation, the Court will deny Strike 3's ex parte
motion to subpoena defendant's ISP to discover
defendant's identity prior to the 26(f) conference. That
sunders Strike 3's entire case, since a failure to
identify defendant makes effectuating service impossible. So
the Court will dismiss this case without prejudice.
I.
Strike 3 cannot subpoena defendant's ISP because its
discovery request lacks sufficient specificity and does not
overcome defendant's privacy expectation.
Strike
3's request for early discovery falls short of Rule
26's requirements. A plaintiff can only discover an
unknown defendant's identity through a court order under
Rule 26(d)(1). But the rule cabins a district court's
discretion to order discovery to circumstances where a
plaintiff shows good cause. See Fed. R. Civ. P.
26(b)(1). And to show good cause, the D.C. Circuit requires
establishing likely personal jurisdiction. AF Holdings,
LLC v. Does 1-1058, 752 F.3d 990, 995 (D.C. Cir. 2014).
Here, Strike 3 clears that hurdle. See Id. at 996
(suggesting using geolocation services to track an infringing
IP address to D.C. justifies a good-faith belief this court
has personal jurisdiction)..
Yet the
D.C. Circuit never said that was the only requirement. For
one, the Court must also balance Strike 3's need for
discovery with a potentially-noninfringing defendant's
right to be anonymous. Only the Second Circuit has
articulated this balance, looking to the plaintiffs showing
of a prima facie claim of actionable harm; their discovery
request's specificity; their alternative means to obtain
the subpoenaed information; the need for the subpoenaed
information to advance the claim; and the objecting
party's privacy expectation. Arista Records, LLC v.
Doe 3, 604 F.3d 110, 119 (2d Cir. 2010) (citing Sony
Music Entm 't Inc. v. Does 1-40, 326 F.Supp.2d 556,
564-65 (S.D.N.Y.2004) (Chin, J.)); see also, e.g., Call
of the Wild Movie, LLC v. Does 1- 1, 062, 770
F.Supp.2d 332, 351 (D.D.C. 2011) (Howell, J.) (applying this
test); Arista Records v. Does 1-19, 551 F.Supp.2d 1,
8 (D.D.C. 2008) (Kollar-Kotelly, J.) (same).
One can
hardly blame the D.C. Circuit for its silence. Of the forty
cases Strike 3 has filed in this district (including seven on
a single day), none have reached the Court of Appeals.
Twenty-two have been voluntarily dismissed, all but one
following the same formula: Strike 3 files a complaint
(identical in every case except for the infringing IP
address). A few weeks later, Strike 3 files a motion to
subpoena the anonymous defendant's ISP prior to the Rule
26(f) conference (identical in every case except for the
particular ISP to be served-Comcast, Verizon, of RCN).
Satisfied by Strike 3's showing of likely personal
jurisdiction, the court grants the motion, usually providing
at least twenty days for the defendant to move to quash the
subpoena, and sometimes providing for defendant's
continued anonymity. Nothing happens for a few weeks, and
then Strike 3 voluntarily dismisses the suit.[1] In the lone
exception, Civil No. 18-810, the defendant successfully
obtained the court's approval to proceed anonymously, and
appeared to be preparing a responsive pleading-but Strike 3
dropped the case. The eighteen pending cases are no
different: in twelve, the judge recently granted the early
discovery motion and Strike 3 is waiting for the ISP to
respond[2]; in five, Strike 3's early discovery
motion remains pending[3]; and in one, Strike 3 hasn't yet filed
its discovery motion.[4] This sounds crazy, but its par for the
copyright-trolling course. According to PACER, Malibu Media,
LLC-another adult film company-filed 150 cases against
anonymous defendants in this district (7183 nationally) from
2012 to 2018, some joining dozens of individuals. How many of
those cases reached the Court of Appeals? Zero.
Although
the D.C. Circuit has never had the chance to elaborate on its
test, the" undersigned considers the Second
Circuit's test very persuasive. And not for nothing, it
comports with the D.C. Circuit's more general observation
that, when evaluating good cause under Rule 26,
"interests in privacy may call for a measure of extra
protection." In re Sealed Case (Medical
Records), 381 F.3d 1205, 1215 (D.C. Cir. 2004) (internal
quotation marks omitted) (quoting Fed.R.Civ.P. 26(b) advisory
committee's note (1970)). "Moreover, in determining
which interests to 'weigh in the Rule 26 balance, courts
look to statutory confidentiality provisions, even if they do
not create enforceable privileges." Id. at
1215-16. In this case, the Court looks to the Communications
Act, which protects cable subscribers' names and
addresses. 47 U.S.C. § 551(c). But cf. Id. at
(c)(2)(B) (providing for disclosure "pursuant to a court
order authorizing such disclosure, if the subscriber is
notified of such order by the person to whom the order is
directed").
Applying
the Second Circuit's test, and placing great weight on
defendant's privacy expectation, the Court will deny
Strike 3's motion for early discovery. To be sure, Strike
3's alleged ownership of an infringed copyright sets
forth a prima facie claim. So too is the requested
information necessary to advance Strike 3's claim, just
as subpoenaing the ISP is necessary to get the information.
But
Strike 3's request lacks the type of specificity the
Second Circuit's test requires: that the request will
identify a copyright infringer who can be sued. See Sony
Music, 326 F.Supp.2d at 566; see also Soo Park v.
Thompson, 851 F.3d 910, 928 n.2l (9th Cir. 2017)
("[I]n circumstances 'where the identity of alleged
defendants will not be known prior to the filing of a
complaint... the plaintiff should be given an opportunity
through discovery to identify the unknown defendants, unless
it is clear ... that the complaint would be dismissed on
other grounds.'" (quoting Gillespie v.
Civiletti, 629 F.2d 637, 642-43 (9th Cir. 1980))).
Strike 3 could not withstand a 12(b)(6) motion in this case
without resorting to far more intensive discovery
machinations sufficiently establishing defendant did the
infringing--examining physical evidence (at least the
computers, smartphones, and tablets of anyone in the
owner's house, as well as any neighbor or houseguest who
shared the Internet), and perhaps even interrogatories,
document requests, or depositions. Strike 3's requested
subpoena thus will'not-and may never-identify a defendant
who could be sued.
Similarly,
'even though "defendants have little expectation of
privacy in downloading and distributing copyrighted [content]
without permission," Sony Music, 326 F.Supp.2d
at 566-67, Strike 3 fails to give the Court adequate
confidence this defendant actually did the infringing. Given
this uncertainty, Strike 3 cannot overcome defendant's
weighty privacy expectation. Imagine having your name and
reputation publicly-and permanently-connected to websites
like Tushy and Blacked Raw. (Google them at
your own risk.) How would an improperly accused
defendant's spouse react? His (or her) boss? The head of
the local neighborhood watch? The risks of a false accusation
are real; the consequences are hard to overstate and even
harder to undo. And Strike 3's flawed identification
method cannot bear such great weight. Defendant may not be
entitled to the same presumption of innocence a criminal
defendant enjoys, but the Court remains uncomfortable
publicly presupposing defendant partook in particularly
prurient pornography given defendant's tenuous connection
to the infringement. Since Strike 3's discovery request
lacks the required specificity and does not overcome
defendant's privacy expectation, the Court will deny
Strike 3's motion for early discovery.
Though
Strike 3 admits a protective order could allow defendant to
anonymously challenge the subpoena, Br. at 8, that hardly
seems fair. That drags defendant into court and foists on
them the unenviable burden of hiring a lawyer or defending
their reputation pro se, all before they've even been
served. That's not how our system of litigation is
supposed to work. Moreover, the inconsistency with which
courts permit defendants to ...