Attorney Steve® Strike 3 Defense Tips: Geolocation addressed in D.C. case.
Strike 3 is known to use geolocation technology to track down infringers that it wants to pursue. It is not surprise that (in my opinion) they appear to target the wealthier jurisdictions in the United States (California, Illinois, Florida, New York, etc.). In California, in areas like Palo Alto, San Jose, San Francisco, Mountain View and Santa Clara, many "tech" clients get caught in the Strike 3 web and many of these people have good jobs and are familiar with technology. These cases get filed in the Northern District of California and large settlements are often pursued.
Southern California (ex. Orange County and Los Angeles) clients are also targeted and get sued in the Central District of California. These are the two main target areas for Strike 3 to filing its copyright file-sharing cases. The Southern District (San Diego, La Jolla, Carlsbad), also have a good number of cases as does the Eastern District of California.
So, in short, their pursuit of infringers is based on their technology that seeks to locate and identify individual defendants that can be sued in the proper jurisdiction. But, is this technology reliable? Does it really identify the proper person responsible for downloading and sharing their adult pornographic movies? This blog involves how one court in D.C. lambasted Strike 3 and dismissed their case without prejudice, and questioned the validity of their geolocation technology.
Maxmind Geolocation Technology
Case on point
A defendant argued in Strike 3 Holdings, LLC v. Doe, 351 F. Supp. 3d 160, 162 (D.D.C. 2018), that Plaintiff's geolocation is flawed because:
- Many people often share the same IP address for the home (tenants, overnight guests, friends, kids, etc.)
- Onion routing and VPN's (virtual private networks that mask the IP address) can spoof IP addresses
- If a innocent computer user has downloaded Malware (i.e. a corrupted and malicious file) this can potentially crack passwords and open backdoors
- Geolocation services can randomly assign addresses to a general location if they can't specifically identify a specific location
Here is what the Court said in relation to Strike 3's enforcement efforts:
Strike 3 is also a copyright troll. Its swarms of lawyers hound people who allegedly watch their content through Bittorrent, an online service enabling anonymous users to share videos despite their copyright protection. Since Bittorrent masks users' identities, Strike 3 can only identify an infringing Internet protocol (IP) address, using geolocation technology to trace that address to a jurisdiction. This 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, e.g. , James Temple, Lawsuit Says Grandma Illegally Downloaded Porn , S.F. Chron. (July 15, 2011, 4:00 AM), https://www.sfgate.com/business/article/Lawsuit-says-grandma-illegally-downloaded-porn-2354720.php.
Simply put, 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. But in many cases, the method is enough to force the Internet service provider (ISP) to unmask the IP address's subscriber. And once the ISP outs the subscriber, permitting them to be served as the defendant, any future Google search of their name will turn-up associations with the websites Vixen , Blacked , Tushy , and Blacked Raw . The first two are awkward enough, but the latter two cater to even more singular tastes.
Little wonder so many defendants settle. Indeed, the copyright troll's success rate comes not from the Copyright Act, but from the law of large numbers. According to PACER, over the past thirteen months, Strike 3 has filed 1849 cases just like this one in courts across the country—forty in this district alone—closely following the copyright trolls who together consumed 58% of the federal copyright docket in 2015. These serial litigants drop cases at the first sign of resistance, preying on low-hanging fruit and staying one step ahead of any coordinated defense. They don't seem to care about whether defendant actually did the infringing, or about developing the law. If a Billy Goat Gruff moves to confront a copyright troll in court, the troll cuts and runs back under its bridge. Perhaps the trolls fear a court disrupting their rinse-wash-and-repeat approach: file a deluge of complaints; ask the court to compel disclosure of the account holders; settle as many claims as possible; abandon the rest. See Matthew Sag & Jake Haskell, Defense Against the Dark Arts of Copyright Trolling , 103 Iowa L. Rev. 571, 575-80 (2018) ; see also infra text accompanying notes 1–4.
At the end of the day, it is important to realize that the Cobbler Nevada case is important to help force Plaintiff to show "additional evidence" that the internet SUBSCRIBER is also the DOWNLOADER (they need to "put you behind the computer') much like a DUI driver. If they cannot provide the evidence, they may be forced to dismiss your case or face a rule 12(b) motion to dismiss. I have found their technology to be accurate in some cases, but missing the mark in other cases leading to a dismissal of the case. Hiring an experienced BitTorrent litigation firm to help you sort out these issues and force Plaintiff to satisfy their burden of proof is often key to a successful defense.
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