Piracy: Strike3 gets Struck Out of Copyright Subpoena Game

[grarpamp]

https://torrentfreak.com/us-court-shields-internet-subscribers-from-futile-piracy-complaints-191028/
https://torrentfreak.com/images/strikedeny.pdf

A New Jersey district court has issued a devastating order against
Strike 3 Holdings, the most active filer of piracy lawsuits in the US.
In four separate cases, the court denied a request to obtain
identities of alleged BitTorrent pirates. The court argues that the
underlying complaints are futile. Even if they held up, other issues
such as the privacy of the accused and Strike 3's failure to use other
enforcement tools, would warrant a denial.
Last week, New Jersey District Court Magistrate Judge Joel Schneider
denied Strike 3 expedited discovery in four cases. This means that
it's not allowed to subpoena ISPs for the personal details of account
holders whose IP-addresses were used to share pirated videos via
BitTorrent. In a very detailed 47-page opinion, the Judge takes apart
various aspects of Strike 3's enforcement efforts. He makes it clear
that these cases should not be allowed to go forward, as the
complaints are futile. "The most fundamental basis of the Court's
decision is its conclusion that, as pleaded, Strike 3's complaints are
futile. The Court denies Strike 3 the right to bootstrap discovery
based on a complaint that does not pass muster," Judge Schneider
writes.

The futility lies in the fact that the complaints themselves include
very few facts. The only thing that the company really knows is that
an IP address is associated with downloading copyrighted works. Strike
3 doesn't know whether the subscriber is involved in the actual
infringements. Courts have previously ruled both in favor and against
allowing discovery to expose the account holders in these situations,
but the New Jersey Court clearly sides with the latter. "The Court
sided with the cases that hold it is not sufficient to merely allege
in a pleading that the defendant is a subscriber of an IP address
traced to infringing activity. Consequently, the Court will not
authorize Strike 3 to take discovery premised on a futile John Doe
complaint." The decision is partly based on the aforementioned
"Cobbler" ruling of the Ninth Circuit Court of Appeals. However, the
Court makes it clear that even if there was a properly pleaded
infringement claim, the requests for expedited discovery would still
be denied. In the opinion, Judge Schneider sums up the other issues as
follows:

(1) Strike 3 bases its complaints on unequivocal affirmative
representations of alleged facts that it does not know to be true.
(2) Strike 3's subpoenas are misleading and create too great of an
opportunity for misidentification.
(3) The linchpin of Strike 3's good cause argument, that expedited
discovery is the only way to stop infringement of its works, is wrong.
(4) Strike 3 has other available means to stop infringement besides suing
individual subscribers in thousands of John Doe complaints.
(5) The deterrent effect of Strike 3's lawsuits is questionable.
(6) Substantial prejudice may inure to subscribers who are misidentified.
(7) Strike 3 underestimates the substantial interest subscribers have
in the constitutionally protected privacy of their subscription
information.