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Judges split on pornography piracy suits

Mike Mosedale//June 11, 2018

Judges split on pornography piracy suits

Mike Mosedale//June 11, 2018

What happens when the privacy interests of internet users collide with the property interests of copyright holders?

That nettlesome question lies at the core of a recent wave of porn piracy lawsuits in the U.S. District Court of Minnesota.

And it has divided the five magistrate judges who have been asked to rule on a critical early discovery issue: whether the court should authorize third-party subpoenas of internet service providers so the plaintiff can figure out whom to sue for what it calls the “rampant and wholesale copyright infringement” of its popular line of adult movies.

In March, Strike 3 Holdings, LLC — which sells DVDs and owns the subscription-based websites Blacked, Blacked Raw, Tushy and Vixen — sued eight John Does in the Minnesota court as part of an aggressive anti-piracy campaign. Since launching the campaign in November, the company has filed more than 700 similar claims in federal courts across the nation.

In each case, the company alleges that an unnamed internet user employed a peer-to-peer file sharing protocol, known as BitTorrent, to illicitly download and share Strike 3’s films. According to the suits, such practices have made Strike 3’s erotica “among the most pirated content in the world.”

But while Strike 3 says it has linked some of the piracy to specific IP addresses, it can’t identify the pirates without first getting the names of internet subscribers linked to those IP addresses.

Back in April, Magistrate Judge Franklin Noel became the first judge in Minnesota to weigh in on a Strike 3 discovery motion.

Citing “the ongoing conflict between the Digital Millennium Copyright Act (DCMA), the Communications Act and the Federal Rules of Civil Procedure 45,” the judge refused to authorize the subpoena of subscriber information from Comcast — a ruling that came as shock to Strike 3’s attorneys.

“The court is not unsympathetic to Plaintiff’s need to discover the actual identity of the infringer of its copyright,” Noel wrote in his order. “However, the discovery sought by Plaintiff through a Rule 45 subpoena directly collides with federal privacy protections. In the absence of binding Eighth Circuit precedent or further guidance from Congress, this Court is compelled to deny Plaintiff’s ex parte motion.”

Noel’s order was promptly echoed in a pair of rulings from Magistrate Judge David Schultz, who likewise cited the “ongoing conflict” between the DMCA and the Communications Act.

Schultz then elaborated: “At the heart of this conflict is whether a copyright owner can use the federal judiciary to discover evidence about a potential, alleged infringer when the infringer’s actual identity is unknown. This friction has been exacerbated by the proliferation of, beginning with Napster, peer-to-peer file sharing computer programs.”

But since Noel and Schultz weighed in on the issue, three other magistrates in the Minnesota district — Judges Becky Thorson, Hildy Bowbeer, and Steven Rau — have come to the opposite conclusion and given a green light to Strike 3’s discovery motion.

“The Court is sympathetic to the privacy concerns Judge Noel and Judge Schultz described,” Rau wrote in a May 25 order. “But the best way for the Court to determine what protection Comcast or the Defendant is entitled to — if any — is for those parties to formally advance their arguments before the Court.”

Strike’s 3’s counsel of record in the Minnesota cases, Adam Gislason of Fox Rothschild, referred questions to a colleague in Los Angeles, Fox Rothschild partner Lincoln Bandlow.

In a phone interview, Bandlow called the orders from Noel and Schultz “an aberration that makes no sense.”

“We’ve never gotten any rulings like that. We’re routinely granted these motions to subpoena the ISP [internet service provider],” said Bandlow. “And there are legions of cases saying that it’s wholly appropriate.”

Strike 3 has since filed an objection to the orders from Noel and Schultz.

If the orders  are allowed to stand, Bandlow contended, his client would have no way to combat the theft of its movies. In Bandlow’s view, if the principle invoked by the judges were to be applied more broadly it would be virtually impossible for any copyright holder to protect their rights on the internet.

“It would literally be the death knell of ever going after anyone,” he said.

So what explains the outlier rulings from two Minnesota judges?

Bandlow speculated that it may stem from “some unfortunate institutional memory of the bad tactics” employed by the notorious Minnesota attorney Paul Hansmeier.

With his former partner John Steele (and fellow University of Minnesota Law School alum), Hansmeier raked in an estimated $6 million by threatening copyright lawsuits against hundreds of unwitting victims and then settling for a few thousand dollars — a business model one federal judge referred to as “a porn-trolling collective.”

Hansmeier, whose law license has since been suspended, is scheduled to go to trial on fraud and extortion charges in federal court this fall. Steele pleaded guilty last year and is expected to cooperate with the prosecution.

Bandlow said Strike 3’s efforts to enforce its copyright bears no similarity to the tactics employed by Hansmeier and Steele, who relied largely on the threat of public shaming of defendants to achieve quick cash settlements.

“It’s the opposite of how we operate,” Bandlow said. “In our motions, we say we’re fine with confidentiality.”

The Minnesota judges who granted Strike 3’s discovery motion seemed to have those concerns in mind, too. Their orders require that Strike 3 keep the names of defendants confidential for at least 45 days and established procedural safeguards that permit defendants to proceed anonymously.

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