WASHINGTON, D.C.—It's been a long time coming, but it appears as though Strike 3 Holdings, which owns the rights to online content from Greg Lansky-created websites such as Vixen.com and Tushy.com, may be overcoming some federal judges' prejudice against allowing the company to press its battle with content pirates. The latest example: U.S. Circuit Judge Neomi Rao—a Trump appointee—writing for a three-judge panel of the D.C. Circuit Appeals Court, overturned a ruling last year from District Court Judge Royce C. Lambert, who refused to grant Strike 3 a subpoena to discover the identity of a pirate so far identified only as "John Doe."
The ruling, which was announced yesterday, comes on the heels of yet another federal court victory for the company, in which U.S. District Judge Noel L. Hillman of the District of New Jersey overturned a federal magistrate's ruling that Strike 3 could not obtain subpoenas for the identities of 13 content pirates.
The new ruling particularly took Judge Lamberth to task for discriminating against the company by noting that he felt that the "aberrantly salacious nature" of Strike 3's content was unworthy of legal protection. He termed the company's 3,000+ anti-piracy lawsuits a "high-tech shakedown," suggesting that the judge believed that protection for some copyrighted material is not worth the federal courts' time.
"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," Judge Lamberth wrote back in 2019. "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."
But the D.C. Circuit panel had a different view of whom the law is supposed to serve.
"The protections afforded by copyright law do not turn on a copyright holder's popularity or perceived respectability," Judge Rao wrote in the panel's opinion. "The district court abused its discretion by factoring the pornographic content of Strike 3's films into its decision.
"The district court was required to assume the truth of Strike 3's factual allegations and draw all reasonable inferences in its favor," she later added. "It failed to do so.
"Instead, the court went outside the record to conduct an in-depth review of Strike 3's publicly available court filings, and relied on this research to conclude that Strike 3 is engaged in a pattern of coercive litigation designed to extract shame settlements rather than identify actual infringers. The facts before the district court did not support these conclusions."
The panel made it clear that subpoenas such as the one denied by Judge Lamberth are the only way for Strike 3 to identify the persons illegally uploading its material.
"This appeal concerns a typical infringement lawsuit filed by Strike 3," Judge Rao wrote. "Using the technology described above, Strike 3’s investigators recorded IP address 73.180.154.14 illegally distributing Strike 3’s films via the BitTorrent network on twenty-two separate occasions over the course of approximately one year. Strike 3 determined that this IP address is registered to a subscriber located in the District of Columbia. In June 2018, the company filed a complaint against the IP address subscriber in the U.S. District Court for the District of Columbia. Because Internet service providers are the only entities that can link an IP address to its subscriber, Strike 3 could not serve its complaint without first subpoenaing the subscriber’s ISP, Comcast, for information identifying the anonymous defendant. Accordingly, the company also filed a Rule 26(d)(1) motion seeking leave to subpoena Comcast for records identifying the John Doe IP address subscriber. ... Strike 3 further averred that it limits infringement lawsuits to 'strong cases against extreme infringers' who 'not only engage in illegal downloading, but are also large scale unauthorized distributors of Strike 3’s content.'"
Judge Rao also noted that Judge Lamberth had characterized Strike 3 as "a 'copyright troll' that has 'flood[ed]' district courts around the country with thousands of lawsuits 'smacking of extortion,' and declared that it would not indulge Strike 3’s 'feigned desire for legal process' by 'oversee[ing] a high-tech shakedown.' ... In this case, Strike 3 contends that the district court abused its discretion by relying heavily on the company’s litigation history and the content of its films rather than the relevant legal standards under Rule 26 and Rule 12(b)(6). We agree."
The D.C. Circuit panel's decision is a stunning victory for Strike 3, coming as it does so soon after similar victory in New Jersey earlier this month.
"Our company has an amazing team that works hard to produce and create highly desired content that not only enjoys a large subscriber base, but is subject to massive online theft," one of Strike 3's attorneys told Bill Donahue of Law360.com, adding that the company is "very grateful of the Court's time and consideration with our case."
With these two legal wins under its belt, Strike 3 should be in a much better position to press its legal claims in federal courts in other jurisdictions.
To read Judge Rao's opinion in this matter, click here.
Image by Sang Hyun Cho from Pixabay
