D.C. Judge Strikes Down Strike 3's Subpoenas, Citing User Privacy

WASHINGTON, D.C.—Strike 3 Holdings, which is co-owned by director Greg Lansky, and which owns the rights to the XXX material created for his websites Vixen, Tushy, Blacked and Blacked Raw, is hardly a stranger to copyright litigation. In fact, at last count, Strike 3 had filed more than 1,500 copyright infringement claims over the past few years against a vast array of "John Doe" defendants, charging that each had downloaded Strike 3-owned material from BitTorrent sites, and seeking money damages for such infringement. But Strike 3 hit a roadblock on November 16, when U.S. District Judge Royce C. Lamberth denied Strike 3's attempt to serve a subpoena on an D.C.-area ISP, the purpose of which subpoena was allegedly to identify the person or persons belonging to an IP address which Strike 3 had traced as the downloader of the copyrighted material. Judge Lamberth ruled that Strike 3's use of geolocation software to identify the downloading IP address was insufficently precise to identify a particular user, and that in any case, the user's privacy rights outweighed Strike 3's power under copyright laws to identify him/her/them. "[T]he Court must ... balance Strike 3's need for discovery with a potentially-noninfringing defendant's right to be anonymous," Judge Lamberth ruled, referring to the 2010 Second Circuit case of Arista Records LLC v. Doe. Worse, however, was that Judge Lamberth tossed the term "copyright troll" in Strike 3's direction, comparing it to such voluminous copyright litigators as Malibu Media. "Of the forty cases Strike 3 has filed in this district (including seven on a single day), none have reached the Court of Appeals," the judge noted. "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 a Rule 26(f) conference... 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." But Judge Lamberth's decision betrays his antipathy for sexually explicit material, and if Strike 3 appeals, that may figure into an appeals court's decision. "Strike 3 fails to give the Court adequate confidence this defendant actually did the infringing," the judge wrote. "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 neightborhood watch?" Later, the judge doubles down on bashing Lansky's material's character. "[T]he typical case does not involve pornography, nor is this even run-of-the-mill porn," the judge claims, noting in a footnote that "'it is unsettled in many circuits'—including this one—'whether pornography is in fact entitled to protection against copyright infringement.'"—a ludicrous legal argument since non-obscene sexually explicit material has full First Amendment protection. "By extension, two factors limit today's holding," the ruling continues. "First is this content's abberantly salacious nature. Second is the legion pitfalls associated with Strike 3's tracking and identication of infringers." [Emphasis added] For this judge to describe Lansky's content as "abberantly salacious" is to imply that it should receive lesser copyright protection, even though the material has never been judged obscene by a court. But at bottom, Strike 3's problem is its inability to identify that a particular person is behind the IP address its software search uncovered. The court earlier speculated that "the computers, smartphones, and tablets of anyone in the owner's house, as well as any neighbor or houseguest who shared the Internet" could be the actual infringer, rather than simply the person listed as paying for the ISP service. In his conclusion, however, Judge Lamberth went out of his way to bash frequent copyright litigators in general. "Armed with hundreds of cut-and-pasted complaints and boilerplate discovery motions, Strike 3 floods this courthouse (and others around the country) with lawsuits smacking of extortion," Lamberth wrote. "It treats this court not as a citadel of justice, but as an ATM. Its feigned desire for legal process masks what it really seeks: for the court to oversee a high-tech shakedown. This court declines." So, absent a successful appeal of Judge Lamberth's ruling, Strike 3 may have to kiss its 40 D.C.-area cases goodbye—but Strike 3's appeal period for the decision has not yet run, so its litigation future remains unclear. Pictured: Lansky and performers at a recent AVN Adult Entertainment Expo.