Strike 3 Holdings has been a familiar name in U.S. federal courts for a while now.
Last year, the adult entertainment company filed a record-breaking number of lawsuits against alleged BitTorrent pirates.
The company is keeping up this pace in 2023, averaging dozens of lawsuits per week. Most of these are never mentioned in the press and a large number are settled behind closed doors.
Every now and then, an accused Internet subscriber objects, but these cases rarely go to trial. According to some, the lawsuits’ main objective is to collect settlement payments and default judgments.
Motion to Quash
This line of reasoning was also brought up by a “John Doe” defendant whose IP address was targeted in a recent complaint. The defendant submitted a motion to quash, hoping to prevent Comcast from revealing their identity.
“Considering the thousands of John Does being sued by Plaintiff, it is highly likely that Plaintiff has no intention of pursuing an actual trial on the merits in the thousands of copyright infringement cases filed by Plaintiff Strike 3,” Doe’s attorney writes.
“[Strike 3] instead hopes to profit from settlements with small and relatively resource limited individual defendants as well as default judgments against individual defendants who are unsure of how to, or feel they are financially unable to, defend themselves through the full course of a copyright infringement trial.”
Based on these and other arguments, the defendant tried to stop the lawsuit in its tracks. However, as we have seen before in these types of cases, the Colorado federal court denied the request.
According to U.S. Magistrate Judge Michael E. Hegarty, who handles all the Strike 3 cases in the district, subpoenas to identify Internet subscribers can only be quashed if there’s a valid claim of privilege or if a privacy issue is implicated. That’s not the case here.
Reliability of the Evidence
The accused pirate’s motion raised questions about the accuracy of the evidence and whether it can accurately detect infringers. For example, if a subscriber has an open wifi network, others including neighbors might use it as well.
Judge Hegarty doesn’t deny this, but notes that this argument is not sufficient to quash the subpoena. Instead, the defendant can bring it up at a later stage.
“Defendant’s arguments challenging Plaintiff’s investigation methods and concerning the accessibility of a Wireless Firewall/Router are premature at this stage of the litigation and more properly raised during adjudication of the merits of this case,” Judge Hegarty writes.
If the case wasn’t allowed to go forward, rightsholders couldn’t possibly enforce their copyrights against alleged BitTorrent pirates, the order adds.
“In fact, Plaintiff’s attempt to obtain information from the ISP is a necessary first step in Plaintiff’s process of discovering the identity of the alleged infringer for the purpose of enforcing its copyright.”
The argument that the company simply pursues these cases to collect settlements isn’t sufficient either. On top of that, the court refutes the suggestion that Strike 3 is a copyright troll.
“[T]he Court has neither observed nor been made aware of any particular Defendant in the cases before this Court who has experienced ‘coercive’ settlement tactics by Plaintiff,” Judge Hegarty writes.
“[T]his Court has handled over a hundred similar cases and consistently found these plaintiffs are not copyright trolls but rather actual producers of adult films whose works are infringed.”
Whether the term “troll” applies is a matter of semantics. A few weeks ago, a Florida court allowed the term to be used during a rare trial, which is scheduled to take place later this year.
Embarrassment and Undue Burden
Finally, the motion to quash highlighted the Doe defendant’s fears that exposing their identity could lead to undue embarrassment and all sorts of related problems.
Specifically, it “would be highly embarrassing to Defendant, unjustifiably stigmatizing to Defendant, injurious to Defendant’s character and reputation, and potentially jeopardizing to Defendant’s employment.”
Judge Hegarty admitted that these are serious concerns. However, since the defendants in these cases can request a protective order to proceed anonymously, it is no reason to quash the subpoena and end the case before it even gets started.
“The Court finds that Defendant has not met his or her burden of showing that the subpoena served on Comcast must be quashed. Therefore, the Court denies Defendant John Doe’s Motion to Quash,” Judge Hegarty concludes.
This outcome doesn’t come as a surprise as similar efforts in Colorado’s federal court have failed as well. However, it is important to highlight that these cases continue to make their way through the courts.
Since all Strike 3 cases in Colorado end up at Judge Hegarty’s desk, this order suggests that it will be very hard to submit a successful motion to quash in this district.
A copy of U.S. Magistrate Judge Michael E. Hegarty’s order on the motion to quash the Comcast subpoena is available here (pdf)