Pretty much anyone who creates adult content for a living is well aware of the time and expense necessary to make sure that said content is making money for its creator(s) rather than for pirate websites willing to post it without regard for its copyright, and BitTorrent sites that allow users to make such content available for free download by any yahoo who comes along.
Every day, lawsuits are filed for copyright violation, but usually, the plaintiffs in such suits know who the copyright violator is, or at least where to find them—but thanks to the relative anonymity provided by IP addresses, some content creators have found it nearly impossible to track down those violators—and some courts aren't making it any easier for those owners to protect their intellectual property.
In a sense, the problem started with the Prenda Law Group and its attorneys, Paul Hansmeier and John Steele, who hatched a scheme to have hardcore scenes filmed and posted to the internet, and then threatened anyone who downloaded that content with a lawsuit and public humiliation if that user failed to pay Prenda at least a $500 fee to drop the lawsuit. Currently, Hansmeier and Steele are cooling their heels in federal prison as a result of their scheme being found to be illegal.
But the Prenda group is hardly the only entity that's been labeled a "copyright troll" by the courts. Perfect 10, the magazine/website that made a cottage industry out of suing various websites like Amazon, Google, Visa/Mastercard, CCBill and even Microsoft for alleged copyright infringement, has also been smacked down by the courts, as has Malibu Media, which filed thousands of lawsuits claiming that various internet users have illegally downloaded its movies, which also sought to get such downloaders to pay a fee to keep a lawsuit from being filed.
But one copyright owner that's frequently described as a "copyright troll" but hardly deserves that epithet is Strike 3 Holdings, a company co-owned by award-winning director Greg Lansky, and which owns the rights to the XXX material created for his websites Vixen, Tushy, Blacked, Blacked Raw and others. Strike 3, beginning in 2017, had filed more than 3,000 copyright violation claims against a variety of "John Doe" internet users who had downloaded Lansky's material from BitTorrent sites—and from whom Strike 3 had attempted to collect what it was due: payment for having illegally copied its copyrighted material.
To press its claims, Strike 3 has applied to various courts for subpoenas to force internet service providers (ISPs) to provide the identities of the owners of the IP addresses to which Strike 3's material was downloaded—but thanks in part to the various actual copyright trolls which have flooded the court system before it, Strike 3 has had one hell of a time getting its subpoena applications approved. Back in November of 2018, for example, U.S. District Judge Royce C. Lamberth of the District of Columbia rejected Strike 3's attempt to serve a subpoena on an D.C.-area ISP, ruling that geolocation software use by Strike 3 to identify the address of the illegal downloader wasn't precise enough to identify that user—and that the copyright violator's right of privacy outweighed Strike 3's right to protect its intellectual property.
And now, yet another court has denied Strike 3 its right to unmask the identities of several internet subscribers who allegedly downloaded what Lansky has testified is "the most pirated adult content in the world." According to an article on Law360.com (subscription required), U.S. Magistrate Judge Joel Schneider of the District of New Jersey ruled last week that "Strike 3's boilerplate accusations did not meet the baseline requirements for a federal lawsuit ... and granting the company an early-stage subpoena posed a substantial risk of violating the privacy rights of innocent internet users."
"The court is not unmindful that its ruling may make it more difficult for Strike 3 to identify copyright infringers," Judge Schneider wrote. "To the extent this is the price to pay to assure compliance with the applicable law, so be it."
Some might get the impression that Judge Schneider thinks that the owners of copyrighted adult material don't have the same rights as owners of other types of material to protect their material from being stolen by ordinary citizens—and the judge said nothing to dissuade anyone from holding that impression.
For instance: "Strike 3’s modus operandi is essentially the same in all of its cases," Judge Schneider wrote in his ruling. "Strike 3 files 'John Doe' complaints naming unidentified assigned subscribers to an Internet Protocol ('IP') address who have been identified by its contractor as an infringer on the BitTorrent ('BT') network. BT is a software protocol that allows users to distribute data through peer-to-peer networks. The BT network permits users to download, copy and distribute Strike 3’s movies. The only pleaded connection in Strike 3’s complaints between the 'John Doe' defendant and the alleged infringement is that the 'John Doe' is the subscriber to the listed IP address. Strike 3 acknowledges it does not know if the subscriber or someone else downloaded its works."
Um ... wouldn't a logical first step in figuring out whether "the subscriber or someone else downloaded the works" be to identify that subscriber by name and address, and ask him (or her) whether someone else has used that computer to download copyrighted material?
However, Judge Schneider seems to be under the impression that "Due to dynamic IP addresses," the subscriber that downloaded Strike 3's material on July 27, 2018, the date referenced on Strike 3's subpoena, may not be the same subscriber who downloaded copyrighted material on a different date. Does the judge seriously think it likely that the ISP doesn't know who its subscriber to that IP address was on any particular date? That is, after all, why companies keep business records.
Judge Schneider then spends more than 40 pages, drawing heavily on Judge Lamberth's November 2018 ruling, discussing why the fact that Strike 3 can't already identify the subscriber and address to which the material was downloaded somehow means the company shouldn't have the legal right to discover who that person is and where he/she lives. To say this is absurd, that it stands civil jurisprudence on its head, should be self-evident.
Nevertheless, Judge Schneider summarizes his ruling by stating, "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."
In a word, bullshit.
