Court: Accused Pirate Can Use the Term ‘Copyright Troll’ at Trial

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Online piracy lawsuits against individual file-sharers rarely make it to trial, but a case in Florida between Strike 3 Holdings and an alleged pirate is moving strongly in that direction. A recent order provides positive news for the rightsholder but that won't prevent the defense from being able to use the term "copyright troll" in court.

troll signStrike 3 Holdings is a familiar name in U.S. federal courts. Last year alone the adult entertainment company filed a record-breaking number of lawsuits against alleged BitTorrent pirates.

While many of these lawsuits have resulted in private settlements, Strike 3 also encountered pushback from some of the people it sued.

In the Middle District of Florida, for example, a “John Doe” defendant denied any wrongdoing and fought back. The previously unnamed adversary came out of the shadows as John Adaire last week, as both parties prepare to go to trial.

Heading to Trial

It’s rare for this type of case to make it this far without being settled. As a result, the parties are fighting tooth and nail to obtain the best possible position in preparation for a public showdown.

According to Strike 3, it is clear as day that the man downloaded and shared 36 of Strike 3’s porn videos without permission. Backed up by technical evidence and testimony, Strike 3 explains that it repeatedly found an IP address, assigned to Adaire, sharing the pirated movies.

The adult company further accused the defendant of destroying electronic evidence by deleting data from his desktop computer, mishandling a hard drive, and reinstalling the operating system on his laptop

“Even if Doe were not the infringer, he made sure to destroy and conceal evidence of his innocence,” Strike 3 wrote in its pretrial statement.

The defendant, now identified as Mr. Adaire, denied any wrongdoing and alleged that Strike 3’s evidence is unreliable. The adult company developed its “VXN” tracking technology in-house, which makes it little more than ‘circumstantial’ evidence.

“VXN had no user’s manual, no design documentation, and was never verified by an independent third party. There is no known false positive rate of VXN, since it was never measured,” the defense argued.

Excluding Homebrew Piracy Evidence?

In preparation for a trial later this year, both parties submitted a motion in limine asking the court to withhold evidence from the jury. Among other things, the defense asked to exclude the VXN tracking evidence.

In addition, the defense asked the court to exclude evidence taken from Doe’s social media profiles and comments from his neighbors, who testified on the strength of his WiFi signal.

Last week the court delivered a mixed ruling. US District Court Judge Mary Scriven denied the request to exclude the VXN data. This means that Strike 3’s main evidence, which links the defendant’s IP-address to pirated films, remains intact.

vxn troll

However, the court granted the request to prohibit the use of information from the defendant’s social media profile. On top of that, testimony by non-experts such as neighbors is, in principle, not allowed either.

Copyright Troll & Press

Strike 3 also asked the court to exclude information from the upcoming trial. As reported previously, the company doesn’t want the defense to use the term “troll,” which is often used to describe its sue-and-settle practice.

According to Strike 3, it’s clear that being called a ‘troll’ is derogatory, so it wants to prevent a jury from being influenced by ‘prejudicial’ language.

“Name-calling has no place in civil litigation,” Strike 3’s lawyers wrote, noting that the label is inaccurate and thus irrelevant.

In her order, Judge Scriven doesn’t agree that this term is off-limits so denied the request. This means that the defense can freely use the ‘copyright troll’ moniker in their arguments.

troll ok

Aside from the troll worries, the adult entertainment company also wanted to exclude all blogs, media, and other Internet coverage from the potential pool of evidence.

These online news articles often contain subjective comments that put the company in a bad light, which could present the wrong picture to the jury, Strike 3 argued.

“The Internet and media articles target Plaintiff and its counsel and contain comments that are biased, slanderous, and prejudicial, and should not be referred to at trial for any purpose,” it wrote.

The court was more sympathetic to this argument and granted the request “on stipulation”. This stipulation isn’t detailed further in the written order, but it’s a win for Strike 3 nonetheless.

Summary Judgment and Sanctions

The good news for Strike 3 doesn’t stop there. In addition to the motion in limine, the court also ruled on the motions for summary judgment from both sides, handing an early victory to the adult company.

After reviewing all arguments, Judge Mary Scriven denied Mr. Adaire’s request for a judgment that he didn’t engage in any copyright-infringing activity. This question will be decided by the jury instead.

Strike 3’s own request for summary judgment was denied along with most of Mr. Adaire’s counterclaims.

The only remaining counterclaim is the accusation that Strike 3 misused its copyrights, by using the Florida State Court as a preliminary process to attempt to acquire federally protected subscriber information. This argument can be presented to the jury.

Finally, Judge Scriven ruled that the alleged pirate will be sanctioned for failing to preserve electronically stored evidence. This is based on Strike 3’s finding that the defendant destroyed evidence by wiping data from his desktop computer and other devices.

Details of the sanctions aren’t revealed in the court order but they certainly won’t help the defense during trial.

All in all, the case can still go either way. It will ultimately be up to the jury to decide on the copyright infringement allegations but Strike 3 will likely feel emboldened by the court’s recent orders.

A copy of U.S. District Court Judge Mary Scriven’s full order, which also touched on other subjects, is available here (pdf)


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