Vondran Legal® - Strike 3 Holdings and the Declarations they file in Court and options to respond to a First Amended Complaint.  If you received an ISP subpoena notice, call us at (877) 276-5084.

Introduction

This blog talks about the potential options for a defendant when plaintiff Strike 3 Holdings files a federal court copyright infringement case alleging illegal file-sharing of their adult video content.  You will see the declarations they file, and you can decide with your legal counsel whether to (a) settle the case, (b) file a motion to dismiss under the Cobbler Nevada case, (c) file a motion to strike portions of the complaint, or (d) file a motion for a more definite statement.

Background

Here are typical allegations in a Strike 3 Holdings copyright case:

"This is one of the numerous cases filed by Plaintiff alleging copyright infringement claims against a John Doe defendant using the BitTorrent file-sharing system.

1 Plaintiff alleges that it is the copyright owner of motion pictures distributed through adult content websites Blacked, MILFY, Tushy, Tushy Raw, Vixen, Blacked Raw, and Slayed. Plaintiff alleges that between March 3, 2022, and September 4, 2023 the person or entity assigned Internet Protocol ("IP") address 77.25.755.451 illegally downloaded and distributed twenty-five of Plaintiff's motion pictures through his, her, or its use of the online BitTorrent file distribution network.

Plaintiff commenced this action against Defendant "John Doe, subscriber assigned IP address 70.95.155.251" on September 27, 2023, alleging a single cause of action of direct copyright infringement.

Because Defendant used the Internet to commit the alleged infringement, Plaintiff alleges that it knows Defendant only by his, her, or its IP address, which was assigned to Defendant by the Internet Service Provider ("ISP"), Spectrum.

In the instant Motion, Plaintiff asserts that Spectrum is the owner of Defendant's IP address, and thus, "is the only party with the information necessary to identify Defendant by correlating the IP address with John Doe's identity." Plaintiff therefore seeks leave to serve a Rule 45 subpoena on Spectrum requesting the true name and address associated with IP address 70.95.155.251. (Id. at 7-8.) Without Defendant's identity, Plaintiff cannot serve Defendant and prosecute this case. (Id. at 8.)

(Strike 3 Holdings, LLC v. Doe (S.D.Cal. Oct. 30, 2023, No. 23-cv-01787-RBM-JLB) 2023 U.S.Dist.LEXIS 195310, at *1-2.)

The Cobbler Nevada case dictates that the plaintiff has a burden to allege that the defendant is not only the SUBSCRIBER to the internet account but also raises an inference that he is the DOWNLOADER/INFRINGER.

Cobbler Nevada - Is S3 additional evidence trustworthy or subject to a motion to dismiss?

Here is a typical "additional evidence" response that is typical of a Strike 3 First Amended Complaint ("FAC").  Is this enough to move the case to the discovery level in federal court?

Their pleading usually continues with a long list of items the John Doe defendants (apparently) claim to have "downloaded."  For example, software downloads, book downloads, etc.

However, it does not say that.  All it says is "lists files," but what does that actually mean?  Is Strike 3 Holdings making some random list after looking at a defendant's social media websites?  Or is this a list of other actual downloads the defendant made through the Torrent protocol?  For example, if the defendant is an engineer, they may have downloaded other engineering books.  This would probably satisfy the Cobbler Nevada standard for "additional evidence" to prove the defendant is more than just an internet SUBSCRIBER, but also he was the actual DOWNLOADER. 

Without this clarification, "lists files" seems vague and may not satisfy the Cobbler Nevada standard.  If they have evidence of other downloads after all, why not just say so in the pleadings and documents filed with the Courts in California, Illinois, Texas, Florida, Ohio, Maryland, New York, and elsewhere?

This may require a meet and confer call with opposing counsel regarding filing a motion for a more definite statement.

Motion for a more definite statement

46 CFR § 502.67 (code of federal regulations)

Here is the standard for filing this type of motion:

Motion to Dismiss legal standards

Another option in responding to a Strike 3 Amended Complaint is to file a Rule 12(b)6 motion to dismiss.  Here is a look at that option:

"Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for failure to state a claim upon which relief can be granted.

The complaint must be liberally construed in the plaintiff's favor, and all facts pleaded in the complaint must be taken as true. See Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1986), cert. denied, 476 U.S. 1159 (1986).

This Court may not dismiss a complaint under Rule 12(b)(6) “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of him claim which would entitle him to relief.” Lowrey v. Texas A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997), quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

The standard for ruling on a motion for judgment on the pleadings is the same. See Bennett-Nelson v. Louisiana Bd. of Regents, 431 F.3d 448, 450 n. 2 (5th Cir. 2005).  At this stage, the Court must simply determine whether the allegations are such that the plaintiffs are “entitled to offer evidence to support [their] claim[s].” See Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999). 

It is not clear if a motion to dismiss would be well accepted by a federal court judge if all Strike3 does is allege "lists files" and not state whether this means "other files that were downloaded."  You should discuss this with experienced copyright counsel.

Motion to Strike 12(f) Another option in responding to pleadings

Aside from the above motions, a motion to strike can be filed if applicable.  Note that courts disfavor these types of motions unless good grounds exist.  Discuss this in your meet and confer call.  Under the FRCP:

"Rule 12(f) Federal Rule of Civil Procedure 12(f) permits the Court to strike “from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”

Attorney Steve® Tip: I have not seen many occasions where a motion to strike would be beneficial.  Plus, remember, if you force Strike 3 to engage in motion work, opposition, and argument (and if you lose the motion or it is easily cured), this could raise the cost of your settlement.

Declarations from Strike 3 that may be filed with the Complaint

The Court in the above-captioned case noted the submission and substance of the declarations submitted by various individuals on behalf of Strike 3 Holdings:

Declaration of David Williamson

Plaintiff first attached the Declaration of David Williamson, an independent contractor hired by Plaintiff as an Information Systems and Management Consultant.  Mr. Williamson states that he "oversaw the design, development, and overall creation of the infringement detection system called VXN Scan which Plaintiff both owns and uses to identify the IP addresses used by individuals infringing Plaintiff's movies via the BitTorrent protocol."

Mr. Williamson's declaration explains in detail how VXN Scan operates and its six components. One component of VXN Scan is a proprietary BitTorrent client that emulates the behavior of a standard BitTorrent client by repeatedly downloading data pieces from peers within the BitTorrent network that are distributing Plaintiff's movies.

Another component of VXN Scan is the PCAP Recorder, which records infringing BitTorrent computer transactions in the form of PCAPs, or packet captures. The PCAPs contain the IP addresses that connect to the proprietary client and send pieces of the computer file containing an infringing copy of one of the plaintiff's movies to the proprietary client through the BitTorrent network.

Not only do PCAPs record the IP addresses used in the network transaction, but they also record the date and time of the transaction, the port number used, and the BitTorrent client used to accomplish each transaction.

PCAPs also identify the "Info Hash value that was used to obtain the transacted piece." This information identifies the data that was shared in the recorded transaction as part of a file containing an infringing copy of one of the plaintiff's movies.

This Order touches on only two of the components of VXN Scan, but Mr. Williamson's eighty-one-paragraph declaration sets forth additional, in-depth details of all six components of the system, providing the Court with a thorough understanding of how the system reliably identifies the IP addresses assigned to individuals infringing Plaintiff's movies and verifies the infringement. See Strike 3 Holdings, LLC v. Doe (S.D.Cal. Oct. 30, 2023, No. 23-cv-01787-RBM-JLB) 2023 U.S.Dist.LEXIS 195310, at *5-7.).

Declaration of Patrick Paige

Second, Plaintiff attached the Declaration of Patrick Paige, a computer forensics expert Plaintiff retained to analyze and retain evidence captured by VXN Scan.

Mr. Paige explains that VXN Scan "recorded numerous BitTorrent computer transactions between the system and IP address 80.85.185.911 in the form of PCAPs."

Mr. Paige states that, using a program called Wireshark, he viewed and analyzed a PCAP he received from Plaintiff and was able to confirm that on September 4, 2023, "IP address 79.25.115.291 uploaded a piece or pieces of a file corresponding to hash value E683F0F9D186007A2269919B201A6997AE284B76 to VXN Scan."

The hash value, or Info Hash, is the data used by BitTorrent to identify and locate other pieces of a desired file; in this case, the desired file contained an infringing copy of one of Plaintiff's movies. Based on his experience in similar cases,

Mr. Paige opines that Spectrum, Defendant's ISP, "is the only entity that can correlate the IP address [70.95.155.251] to its subscriber and identify Defendant as the person assigned [this] IP address....during the time of the alleged infringement." 

Declaration of Susan B. Stalzer

Third, Plaintiff attached the Declaration of Susan B. Stalzer, an employee of Plaintiff's who verified that each digital file VXN Scan received through its transactions with IP address 70.95.155.251 was identical, strikingly similar, or substantially similar to one of Plaintiff's original copyrighted works. 

To do so, Ms. Stalzer viewed each of the digital media files side-by-side with the plaintiff's original films.

Declaration of Emilie Kennedy

Last, the Plaintiff attached the Declaration of Emilie Kennedy, the plaintiff's in-house general counsel.

Ms. Kennedy explains that after Plaintiff received data from VXN Scan identifying IP address 72.99.155.231 as infringing its movies, "the IP address was automatically inputted into Maxmind's Geolocation Database" on March 3, 2022.

"Maxmind [then] determined that the IP address traced to a location in San Diego, California, which is within this Court's jurisdiction."

Ms. Kennedy states that Plaintiff inputted IP address 55.98.142.761 again into the Maxmind Database "prior to filing its complaint" and "before filing [her] declaration," and both times the IP address "continued to trace to this district."

In its motion, Plaintiff argues that this Court has previously "accepted Maxmind's findings for purposes of allowing expedited discovery." (ECF No. 4-1 at 13 (citing Strike 3 Holdings, LLC v. Doe, No. CV 17-2317-JAH (BLM), 2017 U.S. Dist. LEXIS 206016, 2017 WL 6389848, at *2 (S.D. Cal. Dec. 14, 2017)).)

These declarations may help the plaintiff seek early discovery (as you can see below), but they do not necessarily identify who the actual downloader is.  

"Based on Plaintiff's IP address tracing efforts, the timing of its efforts, and Plaintiff's continued tracing of IP address 93.24.169.322 to a location within San Diego, California, the Court concludes that Plaintiff has met its evidentiary burden of identifying Defendant with sufficient specificity and has shown that Defendant's IP address likely relates to a physical address within the Court's jurisdiction."

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