I first wrote about Strike 3 Holdings‘s “pure bill of discovery” cases in October 2019. Back then, the Strike 3 lawsuits were new to Miami-Dade County Court. Because they had so many procedural and legal problems in county court, I did not think they would they would last. Flash forward to nearly a year later, and Strike 3 just filed its fifty second county-court lawsuit and continues to flood Internet Service Providers — Charter, Comcast, Cox Communications, Frontier, RCN Telecom Services, Northwest Fiber, etc. — with Strike 3 subpoenas. You can now add Strike 3’s persistence with county court litigation to the list of things I didn’t expect to see in 2020.
Every time Strike 3 serves a subpoena on an ISP, the ISP sends a letter warning its subscriber, who will receive it and, first, frankly, think, WTF? Having defended many dozens of subscribers who received Strike 3 subpoenas from Miami-Dade County Court over the last year — and defendants in BitTorrent cases in general for close to a decade — I’ve put together a few commonly asked questions related to these cases.
What are these Strike 3 lawsuits?
These are civil lawsuits related to alleged copyright infringement for reason of downloading pornographic videos via the BitTorrent protocol. Generally, copyright infringement is a claim handled in federal court, but these particular cases are filed in state court under a theory of “pure bill of discovery.” Essentially, they are filed for the sole purpose so that, through these Strike 3 subpoenas, Strike 3 can obtain information — names and addresses — of subscribers of Internet accounts Strike 3 has accused of downloading its videos.
But I’m not the only one who uses my Internet account.
It has often been said, in the world of BitTorrent defense, “An IP address is not a person.” The reason is that an IP address can identify a router, but not an individual. In the now frequently quoted case of Cobbler Nevada v. Gonzales, the Ninth Circuit explained:
Although copyright owners can often trace infringement of copyrighted material to an IP address, it is not always easy to pinpoint the particular individual or device engaged in the infringement. Internet providers, such as Comcast or AT & T, can go so far as to identify the individual who is registered to a particular IP address (i.e., an account holder) and the physical address associated with the account, but that connection does not mean that the internet subscriber is also the infringer. The reasons are obvious — simply establishing an account does not mean the subscriber is even accessing the internet, and multiple devices can access the internet under the same IP address. . . .
901 F.3d 1142, 1146-47 (9th Cir. 2018).
Therefore, the fact that an IP address is not a person is a widely known. Regardless, BitTorrent Plaintiffs like Strike 3 continue to file these lawsuits, and (most of) the courts let them.
Are the Strike 3 lawsuits a scam?
No. These are legitimate lawsuits and legitimate subpoenas. They are real, and they are filed by licensed attorneys. So you should take them seriously.
Why did Strike 3 sue me in Miami, Florida?
The Miami-Dade cases are filed under the “pure bill of discovery” theory, which means that Strike 3 is not suing to obtain a judgment of damages for but rather to get your name and address so that it might file another lawsuit against you in federal court in the jurisdiction where you live.
The reason the cases are filed in Florida — even though you might live in California, New York, or some other state — is because it is utilizing a rather antiquated procedure carved into the Florida Rules of Civil Procedure that allows a litigant to file a case for the purpose of doing discovery — obtaining information — prior to filing a lawsuit for damages.
If you were to ask Strike 3’s attorneys, they would say that “the purpose of the litigation is to stop infringement and recoup some of the company’s losses caused by ‘rampant piracy,’” as Bloomberg Law quoted one such attorney as saying. In my opinion, however, the purpose is to spend less money. To date, Strike 3 has filed 3838 lawsuits in federal court, but each federal lawsuit can only target one single IP address. In state court, on the other hand, Strike 3 can file one lawsuit while targeting many dozens of IP addresses. That means one state lawsuit can generate many dozens of Strike 3 subpoenas for just one filing fee.
As for the reason the lawsuits are filed in Miami-Dade as opposed to other counties, I can only surmise that it is because Strike 3’s Florida attorneys are familiar with that particular jurisdiction and because Miami-Dade County judges have been allowing the cases to continue. (Before Strike 3 filed these cases, related Plaintiffs Malibu Media and Patrick Collins did the same thing, setting the precedent for Strike 3 to follow.)
How do I respond to the Strike 3 subpoena?
You have two choices: (a) do nothing, or (b) file something with the Court. On behalf of anonymous Internet subscribers, I have been filing motions to quash the Strike 3 subpoenas, arguing that they should be “quashed,” or voided, because the lawsuits are filed improperly for several legal reasons. After the motion is filed and the ISP is notified, the ISP withholds the information. In my experience, after I file a motion to quash in Miami-Dade County on behalf of an anonymous Internet subscriber, Strike 3 drops that subscriber/IP address as a party.
Does that mean it will be over?
If Strike 3 drops you as a party in the Miami case, they may choose to file a lawsuit against your IP address in federal court, or they might not. In the past they have proceeded with federal lawsuits against some dropped IP addresses, but not all. As to what happens in your particular instance depends on multiple factors.
What happens if Strike 3 files a federal lawsuit against my IP address?
Generally, it will be in the United States District Court in the geographic location where you reside, and it will be filed against you as a “John Doe.” Before Strike 3 can obtain your information, it will need to file a motion asking for leave to seek early discovery and serve another Strike 3 subpoena on your ISP.
What happens if I just ignore the Strike 3 subpoena?
If you ignore it and do nothing, your ISP will send your name and address to Strike 3’s attorneys.
Will I be arrested?
This is not a criminal case. It’s civil. I’ve never heard of anyone arrested for downloading Strike 3’s movies.
Should I just delete everything?
No, no, no. Once a person learns of potential litigation, a duty to preserve evidence can kick in. Preservation of materials (especially electronic files and electronically-stored information (“ESI”)) for litigation is extremely important, and courts have, on many occasions, imposed penalties or sanctions against parties who have not met their preservation obligations. If indeed, in the future, you end up getting deep into litigation with Strike 3 over this case, they might do what related plaintiff Malibu Media did in other cases: try to win based on accusing the other party of “spoliation,” or destruction of evidence. So, the short answer is — no — don’t delete.
What should I do?
I can never tell a client or potential client what they should do, but can only tell them what their options are. That said, you have two options here: (1) don’t file anything to object to the Strike 3 subpoena, or (2) file something like a motion to quash. Every situation is different, and no one can tell you through a blog what is right in your situation. The only thing I can tell you is to be informed and seek experienced legal advice. I can speak to you about your own unique situation and what options are right for you if you schedule a telephonic consultation. Send us an email using our contact form here or call my office at 407-965-5519. I will need to receive a copy of whatever you received from your ISP (it should be a letter with a copy of a subpoena attached).
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