WASHINGTON, D.C. — Several questions posed by judges at a D.C. Court of Appeals hearing last Friday — concerning the right of Strike 3 Holdings to obtain the names of people they believe to be infringing their copyrights via Bit Torrent — challenged a lower court's decision against the adult production company by pointing to language that appears to indicate bias against pornographic content.
Strike 3 Holdings is the company that produces and markets adult films under the umbrella Vixen Media Group, including popular studios Tushy, Blacked, Vixen and Deeper.
Last Friday, the Court of Appeals for the D.C. Circuit heard oral arguments in an appeal by Strike 3 to support their lawsuit against an anonymous person linked to a specific ISP and only identified as "John Doe." The appeal was presided by judge Neomi Rao. Several of the more probing questions that appeared to lean towards allowing Strike 3's appeal came from senior circuit judge Harry T. Edwards.
Arguing for Strike 3 was their longtime litigator for copyright infringement, Los Angeles attorney Lincoln Bandlaw.
Judge Lamberth's Peculiar Tirades
Strike 3 is looking to overturn the peculiar November 2018 ruling by Judge Royce C. Lamberth, which dismissed their request to obtain the identity of the alleged copyright infringer. Judge Lamberth lambasted the company and Bandlaw as "copyright trolls" and used a number of phrases that appeared to indicate that his ruling was colored by a disdain for nature of the plaintiff's content.
"Imagine having your name and reputation publicly — and permanently — connected to websites like Tushy and Blacked Raw. Google them at your own risk," Lamberth wrote in his 2018 decision. "How would an improperly accused defendant’s spouse react? His or her boss? The head of the local neighborhood watch? The risks of a false accusation are real; the consequences are hard to overstate and even harder to undo."
The alleged infringer "may not be entitled to the same presumption of innocence a criminal defendant enjoys," Lamberth continued, "but the Court remains uncomfortable publicly presupposing defendant partook in particularly prurient pornography given defendant’s tenuous connection to the infringement.”
On Friday, Bandlaw's appeal emphasized this apparent prejudice against adult content producers, and the court seemed to agree with him, bombarding the amicus attorney tasked with defending Judge Lamberth's ruling with piercing questions about whether the fact that Strike 3 produces porn was material to the district judge's decision against them.
Bandlaw explained to the court that his case for appeal would clarify "the nature of my client's business, the nature of our lawsuits, and the errors that were made by the district court in denying us a fundamental step towards the process of enforcing our copyrights."
The lawyer described Strike 3 as " a motion picture production company" that "writes, produces, directs, edits" and "is in the business of licensing and selling its adult films."
According to Bandlaw, the fact that Strike 3's catalog comprises "very popular films with a large subscriber base" also results in "a lot of people" stealing the content by using the Bit Torrent protocol "at an astronomical rate."
"Our investigators tell us there are over 400,000 unique infringers of our content each month," Bandlaw told the judges.
Like many other content creators, including producers of mainstream films, book publishers, record companies and software creators, he continued, Strike 3 is obligated to attempt to stop the rampant infringement of their copyright. What makes litigation difficult is that "you don't know exactly who your defendant is." These people are anonymous, he argued, "because of how the internet works."
Serial Significant Infringers
Describing the strategy that has resulted in thousands of cases filed around the country by Strike 3, Bandlaw said that the company does "substantial investigation."
"We don't go after [all] of those 400,000," he explained. "We go after serial significant infringers," by which he meant people downloading "a lot" of Vixen Media Group's content.
"Not one [movie] or one day. There's 22 in this case," he alleged, mentioned that other cases involve 50, 100 or 200 titles over and extended period that could stretch from three to six months.
After identifying the IP address of these "significant Bit Torrent infringers," the company looks at the entire download history connected to that address to assess if the person is a serial infringer of all kinds of copyright.
What Strike 3 wanted from Judge Lamberth, and from a vast number of lower courts across the country, was a court order compelling the internet service provider to identify the name of the owner of the account connected to that IP address.
To obtain the court order Strike 3 needs to prove that there is a "good cause" to request this information. Courts use something called "the Arista test," a case involving the Arista music company suing torrent users to protect their copyrights, to determine good cause.
Judge Lamberth's decision against Strike 3, denying them the court order that would have identified the John Doe who had been assigned the IP address allegedly connected to the infringement, was based on his discretion. Bandlaw argued that this was a case of "abuse of discretion."
Although Lamberth recognized that the Arista test could be used to determine whether Strike 3 had "good cause" to request the court order, he revised aspects of the test in such a way, Bandlaw argued, that would make it impossible for his client to meet it.
The reason? "Because we are producers of adult content," the lawyer said, pointing out that Lamberth had said others could get the order. "'I'm not giving the relief because of the content,'" is how Bandlaw paraphrased Lamberth's ruling.
Judge Lamberth's anti-porn asides were cited by Bandlaw, including the snide "Google at your own risk" and referring to non-adult content producers as "honest copyright holders."
Bandlaw also emphasized that Strike 3 had no other way to proceed with their claims without "getting this discovery" (i.e., the court order Lamberth denied).
"Love Your Content"
One of the judges wanted to know Bandlaw's answer to Judge Lamberth's concerns about possibly misidentifying the actual person who torrented the Strike 3 movies, even if the company got a positive ID for the IP address. The judge mentioned specifically public locations like a Starbucks or a library.
Bandlaw insisted that based on their successful cases, "it very rarely happens that it's a Starbucks or a library" and in the eventuality that one of the court orders reveal such a situation, Strike 3 "would immediately dismiss" that case and move on to other IP addresses.
Judge Lamberth had called the identification of an IP address with a specific infringer a "famously flawed" method, stating that "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) share the same IP address; a geolocation service might randomly assign addresses to some general location if it cannot more specifically identify another […] inferring the person who pays the cable bill illegally downloaded a specific file is even less trustworthy than inferring they watched a specific TV show.”
Lamberth added that "often" the subscriber is not the person infringing. Bandlaw objected to the word "often," pointing out that 75 percent of the time Strike 3 was granted the court order, they have decided to proceed against the subscriber and only 25 percent of the time they decided it was plausible that it might have been someone other than the titular and have dropped the case.
Bandlaw repeated that Strike 3 focuses on cases where someone "has been infringing a lot of works for a period of time" through "repeated access." Once the ISP identified the possible person, "we take that information and conduct a further investigation," he explained.
He mentioned going through people's public Twitter accounts and finding comments about Vixen Media Group brands that show familiarity with the product ("Love your content. Do more work with this particular talent," and so on).
Finally, Bandlaw addressed Judge Lamberth's characterization of himself and Strike 3 as "copyright trolls." The lawyer admitted that there have been "bad actors in the past who've done all kind of bad things." But he contrasted those serial lawsuit-filers ("people acquiring old works for the purposes of suing") with Strike 3, which he described as "a real company."
"We are not going to harass people," he told the court. "It would hurt our reputation."
The Nature of the Site
Mr. Lloyd, the court-appointed amicus who was tasked with arguing in favor of Judge Lamberth's decision, tried to argue that allowing for the discovery "creates a significant risk for misidentification" and "threatens real harm to the internet subscriber."
Judge Edwards interrupted him to point out that Lamberth "seemed to weigh very heavily" that Strike 3 makes pornographic content. Edwards referred to Lamberth's seeming fixation with "porn sites" and the "embarrassment" that being on record as a consumer of adult content might produce.
One of the other judges asked Lloyd if he thought it "wouldn't be a troubling line" of argument to factor "social judgments about the worth of the content being infringed" into a copyright infringement decision.
"What if it was violent content?" she asked. "Would [Lamberth have decided] the same thing?" It seemed clear that the court is concerned about how much "the nature of the site" (i.e., porn) had had on the decision.
Lloyd kept referring to a "multifactor balancing test" that allowed the district court to "exercise discretion." He wanted to stress that the main factor guiding Lamberth's denial was that he thought Strike 3 showed "a pattern" of filing thousands of cases and then either dropping them or settling them.
As for the content, Lloyd pointed out that Lamberth had called the Vixen Media Group product "award-winning and critically acclaimed" in his decision, but the judges pointed out he had also spoken of the "salacious nature of the material."
Lamberth had also brought up in his decision whether pornography should or should not be subject to copyright protection. Lloyd was put on the spot by the judges, who asked for his opinion on that debate, and he conceded he does think that pornography is protected by copyright.
But if content wasn't a crucial factor in the decision, why did Lamberth opine that, as recently as 20 years ago, the matter had been up for debate?
Lloyd equivocated for a few minutes until one of the judges asked him point blank, "Why mention it?"
After a brief invocation of the Renton v. Playtime Theatres case, a 1986 Supreme Court decision regarding zoning that held that localities can prohibit "adult theaters" from operating within certain specific areas (e.g., near schools and churches), Bandlaw took his rebuttal time to stress that Strike 3 was not interested in "shaming" the infringers by publicizing their porn watching habits.
"We are never gonna shame you," he said. "There's no evidence whatsoever we've ever pursued that."
Bandlaw said that although they did try to reach compensatory settlement from some people, their main concern was that the infringement stop.
Main Image: Illustration combining an official oil portrait of D.C. district judge Royce Lamberth and a stock image of an excited man looking at internet content.
