Every year so-called copyright trolls sue thousands of BitTorrent users in the US. While most cases don’t make the news, every now and then one stands out.
This is true for the lawsuit adult content producer ‘Strike 3 Holdings’ filed against a John Doe, known by the IP-address 188.8.131.52, two years ago.
Strike 3 is the most active copyright litigant in the US at the moment. While the company has managed to obtain many settlements against accused pirates, this case was different. The defendant, a retired police officer in his 70s, decided to fight back.
The defendant submitted a counterclaim accusing Strike 3 of abuse of process and “extortion through sham litigation.” The man accused the rightsholder of going on a “fishing expedition,” while knowing that it couldn’t link the subscriber of the IP-address to any specific infringement.
While this counterclaim was denied by the Court, Strike 3 previously said that it was willing to declare that the defendant didn’t infringe its works. As such, the Court encouraged both parties to file a proposed judgment, which would also cover what costs and fees the copyright holder must pay, if any.
Over the past weeks, the parties tried to reach an agreement, but they failed to do so. As a result, this week the accused pirate submitted a motion for summary judgment to set in stone that he’s not a copyright infringer and to have his costs compensated.
The defendant’s attorney, J. Curtis Edmondson, notes that this case made his client potentially liable for an astronomical figure of $13,050,000.00, the maximum statutory damages for the 87 works his client supposedly shared.
However, the attorney points out that there is no evidence that this is the case. On the contrary, the defense argued that the tracking software used by Strike 3 is clearly flawed, as an expert report shows.
“This is the first case that has investigated the technical underpinnings of Strike 3’s dubious claims of infringement that have been replicated nationwide,” Edmondson writes.
“Strike 3 may have an interest in protecting its copyrights, but that interest should be counterweighed against the high false positive rate and the fact the software used to detect the infringements is not ‘forensic software’,” the attorney adds.
Apparently, one of Strike 3’s own experts, Patrick Paige, stated in a deposition that Strike 3 has no actual knowledge that the evidence tracking software (IPP) ‘works’. On top of that, an expert who analyzed the hard drive of the defendant found no evidence that any of the pirated files were stored on his computer.
Based on this, and various other arguments, the defendant asks the Court to grant summary judgment, confirming that he didn’t infringe any copyrights. In addition, the retired police officer asks the Court to award attorney fees and costs, totaling $48,773.13.
In summary, the defendant’s attorney equates the current case to the controversial dealings of Elizabeth Holmes and her now-defunct company Theranos. The young entrepreneur, a Stanford dropout, was lauded as the next Steve Jobs for inventing a revolutionary blood testing machine.
However, after several years of convincing many Silicon Valley investors, as well as the public at large, it turned out that there was no evidence that her machines actually worked.
“This is the first case where a ‘John Doe’ has had to expose the Potemkin village known as the ‘IPP Software.’. Like Theranos, there has been no independent validation studies and no evidence that the IPP Software is ‘forensic software’,” Edmondson writes.
The case is now back in the hands of the Court which will determine whether the defendant is indeed entitled to summary judgment and the requested compensation.
A copy of the motion for summary judgment of noninfringement of copyrights and award attorney fees and costs is available here (pdf).