2020 was a bustling year for Strike 3 Holdings, and the pornographer-litigator shows no sign of slowing down. Because it continues to file lawsuits and issue subpoenas, I decided to put together a few frequently asked questions about Strike 3’s lawsuits in Miami-Dade County.
Who is Strike 3 Holdings?
Strike 3 Holdings, LLC is a pornographer that publishes and distributes videos to subscribers on various porn websites, including Blacked, Tushy, Vixen, and Blacked Raw. Its videos somehow find their way to BitTorrent streams (because someone downloaded them then uploaded them via BitTorrent), and then BitTorrent users download them — often en masse. Then, from Germany, Strike 3’s “expert’ scours the BitTorrent streams to identify the IP addresses that are downloading Strike 3’s movies, and continues to conduct this research until he has amassed a lengthy list of alleged downloads. Strike 3 then files lawsuits against subscribers of those IP addresses, accusing the subscribers of downloading its videos and violating its copyrights by making copies of the videos and sharing them via the BitTorrent peer-to-peer file-sharing system. Many people refer to this litigation behavior as “copyright trolling”; however, it’s perfectly legal and most courts allow it.
I have never heard of Strike 3’s movies. Why did I get this subpoena?
If you received a Strike 3 subpoena from your ISP — whether it Comcast, Charter, Frontier, NorthwestFiber, Cox, or many other providers — it is because you are the account holder of an Internet service. If you did not download any movies, someone else who uses your Internet regularly may have. The first thing you can do is consider who might be using or accessing your modem. If you do not know who did the alleged downloads, do not touch with your router to try to lock it down — leave it exactly as it is until we can have a consultation. There are ways to detect what devices are accessing it at that given time, and planning to figure out what is going on in your household or within your router’s range is something we can discuss during a consultation. Regardless, the letter you received is something to be treated seriously. It is not a scam.
Why was I included in a lawsuit in Miami?
Florida has a seldom-used and practically obsolete tool for litigants called the pure bill of discovery. In theory, litigants can use it to obtain information about an issue before filing a lawsuit against that person. But in practicality, few circumstances exist when it can actually be used.
For the sake of example, imagine you hired someone to replace the floors in your house. The materials seller said it installed oakwood, but your carpenter friend tells you it used a cheaper wood. You don’t want to file a lawsuit for fraud, however, before seeing more evidence. So you file a lawsuit for pure bill of discovery against the seller asking for it to provide all documents related to its purchase of the materials used in your floors. To file such an action, there must be some basis for targeting the seller (i.e., here, your carpenter friend has given his “expert opinion” that the wood is different). You serve your newly filed petition on the seller. However, the seller moves the court to dismiss the action. The court grants the seller’s motion, and, quoting Mendez v. Cochran, says that a pure bill of discovery cannot be used “simply to obtain a preview of discovery obtainable once suit is filed.” 700 So. 2d 46, 47 (Fla. 4th DCA 1997). In other words, you should have just filed your fraud suit to begin with.
This reason — that discovery is available in litigation when you just file a lawsuit — is why the pure bill of discovery is so rarely used and, essentially, is antiquated and unnecessary in today’s world. A spate of legal issues exist with these lawsuits, which is why, when representing a defendant in these cases, we typically file a defensive motion to quash Strike 3’s subpoena.
What Strike 3 has been doing, however, is using this antiquated tool to issue subpoenas to Internet service providers. It is doing it in Miami because the attorneys are located in Miami and are familiar with that court. As to the reason it files the lawsuits in county instead of circuit court, I can guess might because county court typically moves faster than circuit court, is easier to get hearings, and, just possibly, it is easier for their motions to be granted.
Can Strike 3 sue me in Miami when I live in California/New York/New Jersey/Illinois/Washington, etc.
In order for a lawsuit to be valid in Florida, the court must have what’s known as “personal jurisdiction.” Personal jurisdiction can be a bit complicated, and the courts use a multi-prong test to determine whether it exists over a person. But essentially, what it means is that there has to be some reason connecting you to that state. Some reason where you would have reasonably anticipated being sued in that state. In many of the Strike 3 lawsuits I have seen, the personal jurisdiction test is not met. So, essentially, yes, it can file a lawsuit in Florida, but that does not mean that it will prevail in that lawsuit.
Can I be arrested for these allegations?
Strike 3 lawsuits are not criminal cases. They are civil only. There are no criminal penalties to worry about.
Can they come after my house?
You’re jumping the gun with this question. Take a deep breath. No one can legally come after your property unless they have a judgment against you. Next, many states, including Florida, offer homestead protection. Regardless, however, your concerns are way premature. There is no judgment against you at this stage when you have received a Strike 3 subpoena. It is the very, very early stages, and you have an opportunity to defend yourself.
How much is Strike 3 suing me for?
The Copyright Act allows for different measures of damages if you are a copyright holder and your rights have been violated. One measure of damages is statutory. At the time the law was written, the idea was if an artist had one piece of artwork that had been unfairly copied but had suffered little to no actual damages, an amount of “statutory damages” could compensate that artist. The Act allows for recovery of damages in an amount ranging from $750-$30,000, depending on the circumstances.
However, the legislature has not caught up to Copyright Trolls; $750-$30,000 is the measure of damages for only one work. What Strike 3 does is register copyrights for multiple videos, and, once a person has downloaded a whole bunch of them, sometimes more than 100, it files a lawsuit. I’ve never seen Strike 3 file a lawsuit for just one movie; it is always for multiple works. So, ultimately, the statutory damages are multiplied by the number of alleged infringements, or downloads, which can result in an unreasonably high number.
Strike 3 might also say that the infringements were “willful” in which case it can request damages of up to $100,000 per infringement. However, in most cases, that type of calculation is unreasonable
How can I make this go away?
This is the number one most asked question. Essentially, it depends on your own unique situation and multiple factors. Every case is different.
While we will often file a defensive motion in Miami, even if we can make the Strike 3’s claims against you in the Miami case “go away,” it does not necessarily mean Strike 3’s claims against you will go away forever. In some cases, it might be a good idea to ultimately plan to negotiate a reasonable settlement. When a plaintiff like Strike 3 sues for a large sum of money, it is taking a risk that, even if it gets that large judgment it may not be able to collect anything. Getting a judgment is hard enough, but collecting on that judgment is a whole other ball game. For these reasons, Strike 3, as well as most plaintiffs in litigation, will negotiate. However, you may be in another situation where your factual or legal defenses or other unique circumstance would mean that other options might be worth considering. To really discuss what is best in your unique situation, I need at minimum to discuss your matter during a proper consultation.
Did you receive a letter from your ISP with a Strike 3 subpoena?
If the lawsuit is in Miami-Dade County or any of the federal courts in Florida, please contact us to schedule a consultation. Since 2012, I have represented Defendants in BitTorrent lawsuits and am one of the most experienced attorneys in BitTorrent defense in Florida. I can discuss your situation with you and can help you assess your situation and what options are best for you.
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