On July 14, 2020, the Court of Appeals for the District of Columbia Circuit issued a reversal of one of the most head-scratching decisions to come down in a long time, namely, that porn filmmakers, Strike 3 Holdings LLC, had no ability to discover the identity of who was downloading their films. The reason? Because it's porn, that's why.[ref]Is Pornography Not Protected by Copyright?[/ref] The District Court's dismissal hinged primarily on two factors. Firstly, that "Strike 3's need for the subpoenaed information was outweighed by the ‘potentially-noninfringing defendant's right to be anonymous'—a privacy interest the court found especially weighty given the ‘particularly prurient pornography' at issue."[ref]Strike Three Holdings, LLC v. Doe 2020 WL 3967836 Court of Appeals for the District of Columbia 2020 at 2[/ref] In sum, because this was pornography, and "particularly prurient pornography" at that, the anonymous Defendant had somehow acquired legal rights not available to someone else who was merely downloading copies of "The Avengers." The second prong of the District Court's reasoning was that in essence Strike 3 was a "copyright troll" who deserved no relief. "The court characterized Strike 3 as a ‘copyright troll' that has ‘flood[ed]' district courts around the country with thousands of lawsuits ‘smacking of extortion,' and declared that it would not indulge Strike 3's ‘feigned desire for legal process' by ‘oversee[ing] a high-tech shakedown.'"[ref]Id.[/ref] Contained in a footnote was another reason: that pornography was not protected by copyright. I wrote a blog post at the time about this contention.[ref]Is Pornography Not Protected by Copyright?[/ref] Remember that this is not a motion to dismiss, but a motion to issue a subpoena. But by ruling that no subpoena would be issued, the Judge, then on its own motion, dismissed the case without prejudice. At the time, I wrote that this would prevent an appeal. Obviously, I was incorrect. At least in the D.C. Circuit, a dismissal of a case without prejudice is still treated as a final order and is appealable. For this error, my apologies. Yet, consider the strange footing of the resulting appeal. Since there was no named Defendant, who had also been dismissed from the case, the Court of Appeals appointed a "friend of the Court" to represent Doe's interest.[ref]Strike Three Holdings, LLC v. Doe at 3[/ref] For its part, the Court of Appeals sidesteps the obscenity issue. It simply rules that since the District Court had ruled that Strike 3 held a valid copyright, this made the obscenity issue moot.[ref]Id. at footnote 4[/ref] As to the issue of whether Doe's privacy interest outweighed Strike 3's interest in protecting its copyrights, the Court of Appeals held the following:[ref]Id. at 4-5[/ref]
  • The district court reasoning that Strike 3's ability to defend its copyright turned on the content of its films is "not supported by the relevant legal standards."
  • "The mere fact that a defendant may be embarrassed to have his name connected to pornographic websites is not a proper basis on which to diminish a copyright holder's otherwise enforceable property rights."
  • "Basic copyright principles establish that a plaintiff's ability to defend its copyrights cannot turn on a court's subjective view of the copyrighted material. The fundamental premise of copyright law is that the owner of a valid copyright has a protectable property interest in its creative works."
  • "[T]he content of a copyrighted work is per se irrelevant to a Rule 26(d)(1) motion seeking discovery to identify an anonymous infringer. The protections afforded by copyright law do not turn on a copyright holder's popularity or perceived respectability."
Next up is the question of whether the District Court's finding that Strike 3 was a "copyright troll" was another bar to its request for relief, particularly where the Court went outside the record in the case to gather such information. The Court of Appeals has no trouble finding this was improper as well, indeed an "abuse of discretion." While "district courts may properly take judicial notice of proceedings and filings in other courts... [t]he factual record did not support the negative inferences drawn."[ref]Id. at 8[/ref] "A court cannot, however, reasonably infer that a plaintiff lacks a legitimate motive in pursuing discovery based solely on the plaintiff's litigation volume and case history. Where, as here, a plaintiff alleges that it is the victim of copyright infringement on a massive scale, the mere fact that it has filed a significant number of lawsuits is not a valid basis on which to impute an improper purpose. Nor is the fact that many such lawsuits settle or are dismissed at an early stage necessarily suggestive of improper intent."[ref]Id.[/ref] "While the district court did not explicitly refer to Strike 3's litigation conduct when analyzing the Rule 26(d)(1) motion, the court's perception of Strike 3's motives appears to have colored its analysis. Indeed, the court took pains to emphasize that a different result might obtain in a case involving an ‘honest copyright holder,' (citation omitted) and derided Strike 3's ‘feigned desire for legal process' in summarizing its holding."[ref]Id.[/ref] Much is often made of the fact that lawsuits by porn studios do not got to trial, either by reason of default judgement, settlement, or dismissal. But there are good reasons why this trend is not as suspect as it may seem on first blush. Firstly, and most importantly, discovery may indicate that the Defendant is not the infringer, such as the infringement took place when the Defendant was out of the country. This case warrants being  voluntarily dismissed. Next up is where the facts make it doubtful that Plaintiff can prove Defendant was the infringer, such as the case of Cobbler Nevada, LLC v. Gonzales,[ref]901 F.3d 1142 (9th Cir. 2018)[/ref] where "the IP address was registered to an individual who operated an adult foster care home where numerous residents and visitors had access to the same Internet service and IP address."[ref]Strike Three Holdings, LLC v. Doe at 6[/ref] A dismissal would seem logical under those circumstances as well. Lastly, given the reluctance of certain court to award more than the minimum statutory damages of $750, the Plaintiff may decide that the costs of pursuing the litigation to trial outweigh the amount of recovery it can expect. A dismissal would also seem logical under those circumstances. But, for a Court to dismiss a case based upon the notion that a downloader of pornography somehow has a superior expectation of privacy than a "run of the mill" downloader? Not logical. And now, not the law.