Introduction

Strike 3 Holdings (S3”) has filed THOUSANDS of copyright infringement lawsuits, and usually manages to settle quite a few of them. However, they do not always prevail in their bringing of these actions (usually in a federal court lawsuit). There are times they have had to dismiss cases.

When a person gets the so-called “love letter” from their ISP notifying them that their I.P. address was used to download and share their movies without permission, and setting a deadline for the subscriber to raise any objections or to seek to quash the subpoena, (not generally an effective strategy for federal court cases), it can become very stressful to understand what happened, what your rights are, and to consider if there are any defenses to copyright infringement or other mitigating factors. This blog contains some important things to note.

Are there defenses to allegations of illegal file sharing copyrighted movies?

There are several instances where raising the proper defense against Strike 3 Holdings can help you avoid paying their large settlement demands (which can be as high as $50,000). Here are a few items to think of for anyone caught in their IP enforcement web. This company files HUNDREDS upon HUNDREDS of lawsuits each year and will likely hit the 10,000 case filings mark next year.

Case review - Strike 3 Holdings, LLC v. John Doe (73.225.38.130) - I am not the downloader.

In Strike 3 Holdings, LLC v. John Doe (73.225.38.130) in the U.S. District Court for the Western District of Washington is a case concerning copyright infringement. Strike 3 Holdings sued “John Doe” for downloading and sharing their films without permission. The court granted Strike 3 Holdings' motion for expedited discovery and allowed them to subpoena the Doe's internet service provider (ISP) to learn his identity. The court also denied Doe's motion to quash the subpoena, finding that Doe failed to demonstrate how the requested information was overly broad, unduly burdensome, or harassing. This is how each BitTorrent case typically starts.

However, in this case, the Defendant denied any file sharing of their digital content and disputed their claims and filed a counterclaim for declaratory judgment for non-infringement of copyright.

As the case progressed, Strike 3 decided to dismiss their case (apparently realizing they had the wrong person). The court agreed to their dismissal request, but also stated that Defendants counterclaim was NOT DISMISSED and was still active.

The counterclaim was for declaratory judgment of non-infringement. Thereafter, the court ruled for the Defendant on their claim, and ordered Plaintiff to pay their attorney fees. In a copyright action, the attorney-fee clause is a two-way street. Whoever prevails in the litigation can seek their reasonable attorney fees. Strike 3 appealed but the decision was affirmed on appeal.

So, I did not do it is the best defense, but as noted, they may force you into litigation and force you to incur fees to prove your innocence. Not everyone wants to go to court however and most cases will settle without proceeding to discovery.

As observed by the Honorable Royce C. Lamberth, the method of identifying copyright infringers by IP address is “famously flawed” for a variety of reasons, including:

• IP address spoofing;
• the existence of unsecured routers;
• the ability of malware to crack passwords or open backdoors;
• the sharing of IP addresses among family members, roommates, guests, neighbors, and others;
• and the random assignment of IP addresses to a general location if a more specific one cannot be identified by geolocation services. See Strike 3 Holdings, LLC v. Doe, 351 F. Supp. 3d 160, 162 (D.D.C. 2018);
• Moreover, dynamic IP addresses might be reassigned to many different individuals during a short timeframe, and these frequent changes create a significant chance of misidentification. See Strike 3 Holdings, LLC v. Doe, 2019 WL 5446239 at *11 (D.N.J. Oct. 24, 2019).

These are some other things that should be reviewed in every case.

Other potential defenses to review in file-sharing litigation:

• Statute of limitations (generally three years from the date of discovery)
• Movies that did not download
• Deminimis downloads (so small as to be unrecognizable)
• Fair use might also be worth looking at
• Your kids friends did the downloads
• You can prove you were out of town during the downloads
• Challenging Strike 3’s alleged evidence with a Cobbler Nevada challenge, forcing them to prove “additional evidence” showing that the internet subscriber to the account (ex. Comcast, Cox, Verizon, AT&T and others) is also plausible to be the downloader.
• Challenge to the geolocation technology (see below)

Strike 3 has raised concerns to various courts throughout the country

Courts around the nation have expressed increasing concerns that, given the nature of the films at issue, defendants may feel coerced to settle these suits merely to prevent public disclosure of their identifying information, even if they believe they have been misidentified. See, e.g., Strike 3 Holdings, LLC v. Doe, No. 2:18-cv-00824-CB, 2018 U.S. Dist. LEXIS 130803, 2018 WL 3688415, at *1 n.2 (W.D. Pa. Aug. 3, 2018).

("Of particular concern is the possibility that the names and addresses that the service providers will connect to the IP addresses identified in the complaint may not be those of the individuals who actually downloaded the film."); Strike 3 Holdings, LLC v. Doe, No. 18-cv-2648-VEC, 2019 U.S. Dist. LEXIS 587, 2019 WL 78987, at *4 (S.D.N.Y. Jan. 2, 2019) ("As numerous district courts in this Circuit have pointed out, copyright holders such as Plaintiff are repeat litigants who have, in the past, engaged in 'abusive litigation practices,' including coercive settlement practices."); Strike 3 Holdings, LLC v. Doe, No. 1:18-cv-2205-RC-GMH, 2018 U.S. Dist. LEXIS 182800, 2018 WL 5297816, at *2 (D.D.C. Oct. 25, 2018).

("[T]here is a real risk that a defendant might be falsely identified and forced to defend themselves against unwarranted allegations or that an innocent defendant may be coerced into an unjust settlement with the plaintiff to prevent the dissemination of publicity surrounding unfounded allegations.")
Strike 3 Holdings, LLC v. Doe, No. 3:21-cv-993 (MPS), 2021 U.S. Dist. LEXIS 196955, at *2-3 (D. Conn. Oct. 13, 2021) – Geolocation technology challenges?

At least one district court recently concluded that the "geolocation technology" that Strike 3 uses to identify alleged infringers' IP addresses, (See Compl., ECF No. 1 ¶ 9), is too imprecise to identify the particular individual who downloaded or distributed the content in question. See Strike 3 Holdings, LLC v. Doe, 351 F. Supp. 3d 160, 162 (D.D.C. 2018) ("This [geolocation] method is famously flawed:

• virtual private networks and onion routing spoof IP addresses (for good and ill);
• routers and other devices are unsecured;
• malware cracks passwords and opens backdoors;
• multiple people (family, roommates, guests, neighbors, etc.) share the same IP address;
• a geolocation service might randomly assign addresses to some general location if it cannot more specifically identify another

See Strike 3 Holdings, LLC v. Doe, No. 3:21-cv-993 (MPS), 2021 U.S. Dist. LEXIS 196955, at *3-4 (D. Conn. Oct. 13, 2021). These are still more defenses to consider in defending the accused downloader.

Conclusion

This blog scratches the surface on legal concepts that may be important in defending Strike 3 Holdings, LLC copyright infringement claims. Our firm has handled hundreds of these cases and saved our clients millions of dollars in settlements over the years. Strike 3 employes a team of regional copyright lawyers who bring these federal court cases in states such as California, Texas, Illinois, Pennsylvania, New Jersey, New York, Florida and other states.