MIAMI — A Miami federal judge ruled last week that IP addresses alone cannot be considered as concrete evidence that a particular individual infringed on a plaintiff’s copyright, as attorneys representing Strike 3 Holdings claimed.
The case, known as “Strike 3 Holdings LLC v. JOHN DOE subscriber assigned IP address 72.28.136.217,” was filed at the U.S. District Court for the Southern District of Florida on February 26. It was one of several lawsuits filed by Strike 3 at the time against a number of John Does only identified by their IP addresses.
On May 7, U.S. District Judge Ursula M. Ungaro ruled “that a mere IP address — a number that identifies an internet network — offered little concrete evidence that a particular person in her district had illegally downloaded a copyrighted video,” according to legal news site Law 360.
Judge Ungaro ruled that it is not possible to ascertain that the IP address cited by the plaintiff does not belong “to a coffee shop or open Wi-Fi network, which the alleged infringer briefly used on a visit to Miami.”
“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,” wrote Ungaro.
Thousands of Lawsuits
Over the last two years, Strike 3 Holdings (S3H) has filed “thousands" of copyright lawsuits, aiming to protect copyrighted content by brands they control such as Vixen, Tushy, Blacked, Blacked Raw and Tushy Raw.
The Miami judge's decision added fuel to the controversy over the tactics litigious adult studios use to protect their copyrights.
Ungaro called Strike 3’s methods “problematic,” a more subtle way to refer to what critics have called “copyright trolling.”
According to Law 360's Bill Donahue, Strike 3 has reportedly filed “more than 3,000 copyright lawsuits since 2017, occasionally drawing the ire of federal judges who oversee those cases, like one who called it a ‘high-tech shakedown’ last year.”
This is how the legal news site has described Strike’s 3’s approach:
“The studio monitors for IP addresses that download its films without authorization, then uses geolocation technology to figure out roughly where the network is located. They then file a lawsuit in the appropriate district against the John Doe subscriber linked to the address, allowing them to request a subpoena to force the address’s internet service provider to reveal the name of the subscriber.”
Strike 3’s strategy has been controversial around the country. Earlier this year, a similar lawsuit in Seattle resulted in a protracted legal battle between Strike 3 and a stubborn defendant. “John Doe is a retired police officer in his 70s,” argued the defense. “He has been married for over 40 years. Until he was sued by S3H, John Doe had never heard of the pornographic websites ‘Blacked,’ ‘Vixen’ or ‘Tushy’. John Doe does not know who downloaded these movies.”
The holding company’s legal strategy also explicitly refers to the importance of their “award-winning, critically acclaimed adult motion pictures.” Last August, a similar Strike 3 filing in a Rochester, N.Y., court claimed that the person/s behind the IP address were "stealing these works on a grand scale."
"Strike 3's motion pictures are distributed through the Blacked, Tushy, Vixen, and Blacked Raw adult websites and DVDs," the lawsuits explained, assuming the judge’s lack of familiarity with some of porn’s most aggressively marketed brands. Whoever was behind the IP, the company’s lawyers wrote, was ”committing rampant and wholesale copyright infringement by downloading Strike 3's motion pictures as well as distributing them (to) others."
"Strike 3's motion pictures have had positive global impact,” the filing continued, praising the work of brand figurehead Greg Lansky, “leading more adult studios to invest in better content, higher pay for performers and to treat each performer with respect and like an artist.”
A Senior Judge Dabbles in Porn Criticism
It might seem at first strange that Strike 3's argument about what is clearly a technical question about IP use or misuse would detour into a defense of adult content. However, the company's lawyers have also had to deal with blatantly uninformed anti-porn prejudice from the bench.
Last November, D.C. judge Royce Lamberth, a 75-year-old Senior Judge from San Antonio, Texas, appointed by Ronald Reagan, delivered a moralistic diatribe during a Strike 3 IP lawsuit.
"Imagine having your name and reputation publicly—and permanently —connected to websites like Tushy and Blacked Raw (Google them at your own risk)," wrote an indignant Lamberth. "How would an improperly accused defendant’s spouse react? His (or her) boss? The head of the local neighborhood watch [sic]? 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."
Dabbling in the unremunerative world of porn criticism, Judge Lamberth (who has been reprimanded by the Appeals Court for questionable impartiality) described the glossy Lansky product as "not run-of-the-mill porn," calling attention to what he saw as its "aberrantly salacious nature."
But last week's ruling by Miami's Judge Ungaro did not veer at all into amateur porn criticism or tricky First Amendment issues. Her dismissal was based on the fact that “a mere IP address and Strike 3’s tracking technology could not effectively establish who had actually downloaded the movies, or that they were residents of her district” and that therefore Strike 3 “has not shown good cause as to why this case should not be dismissed for improper venue.”
The judge also “refused to grant Strike 3 the discovery that would allow them to subpoena an internet service provider (ISP) to try to find the actual person accused of copyright violation behind the IP address."
Unlike Ungaro, other Miami judges hearing some of the many cases filed by Strike 3 have been willing to issue subpoenas.
Strike 3 Holdings vs. JOHN DOE subscriber assigned IP address 72.28.136.217