Pleading Standard Heightened for Anonymous Online Activity

• Author: John M. McNichols
• Pages: 21-21

Published in Litigation News Volume 46, Number 1, Fall 2020. © 2 020 by the American Bar A ssociation. Repro duced with permissi on. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any form

or by any means or stored i n an electronic database o r retrieval syst em without the expr ess written co nsent of the American B ar Association.

Published in Litigation News Volume 46, Number 1, Fall 2020. © 2 020 by the American Bar A ssociation. Repro duced with permissi on. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any form

or by any means or stored i n an electronic database o r retrieval syst em without the expr ess written co nsent of the American B ar Association.

recent decision th reatens plainti ffs’ ability to se ek

redress from pers ons who anonymously download

and share copyrig hted content online. I n Strike 3

Holdings, LL C v. Does, the court d enied a

request for expedite d discovery to un mask the

identities of “John Doe” defenda nts through subpoenas to

internet serv ice providers (ISPs). According to the court, t he

plaintiff had to ide ntify the defend ants by more than their

Internet Protocol ( IP) addresses to state an infri ngement

claim. Althoug h not the rst to deny an ex parte request for

subscriber-identi fying discovery, the court in St rike 3 broke

new ground by basing its d ecision on the decie ncy of the

underlying clai m under the pleading s tandards of Federal

Rule of Civil Proce dure 12(b)(6). ABA Section of Lit igation

leaders expect t hat, if followed, the ruling wi ll have a pro-

found effect on the v iability of other “John Doe” infringe -

ment claims in t he future.

Strike 3 is the holdi ng company of an online pornography

distributor that cla ims to possess “the most pirated adult

content in the world.” Several years ago, S trike 3 launched

a large-sc ale attack agai nst illegal dow nloading, l ing more

than 3,00 0 infringement lawsuits. Ar med with only the IP

addresses asso ciated with the alleged downloadi ng, Strike

3 would plead claims aga inst “John Doe” defenda nts, then

seek expedited d iscovery on an ex parte basis from ISPs ,

such as Comcast, Yahoo, and Veriz on, to uncover the names

of subscribers asso ciated with the IP addresses. T his strategy

was largely success ful for several year s.

In the new rul ing, however, the court denied Strike 3’s

request, noting “red a gs” highlighted i n another Strike 3

case. Afte r a “deep dive” into Strike 3’s method of identif y-

ing IP address es, the court labeled the company’s subpoenas

“misleading” bec ause they would not elicit the n ames of

subscribers at the t ime of infri ngement, but rather those of

the current subsc ribers. Due to the “dynamic nature of IP

addresses,” the cour t held that “Strike 3 . . . does not know

who infringed it s works” and therefore failed to st ate an

actionable infr ingement claim. Without a valid claim , expe-

dited discovery wou ld be “futile.”

The court acknowle dged that its rul ing “may make it

more difcu lt for Strike 3 to enforce its copyrights agai nst

potential inf ringers,” but added, “A legal remedy does not

exist for every wrong.” Mich ael D. Steger, New York, NY,

cochair of the S ection of Litigation’s Intellectual Proper ty

Litigation Comm ittee, emphasizes this as th e key point of

the ruling. “ Even if there’s actual in fringement going on,

this ruli ng effectively shuts down this typ e of case,” Steger

notes. As a result , he adds, “plaintiff s like Strike 3 will have

to rethink t heir whole strategy.”

Ronald Hedges, Ne w York, NY, cochair of the Sec tion’s

Pretrial Prac tice & Discovery Committee , explains that

“courts are aware that t here is a great deal of uncertaint y

with IP addres ses, and they have to be cautious, especia lly

when proceeding on a n ex parte basis. This case is a jud icial

reaction to those conc erns.” Hedges continues , “It says that

you just can’t do what the plaintif f is trying to do.”

Both Sect ion leaders were skeptical of the court’s sug-

gestion that Str ike 3 possessed a n effective alternative

remedy in takedown not ices under the Digital Mille nnium

Copyright Act (DMC A). As Steger notes, u nlike Strike 3’s

ISP subpoenas, a DMC A notice is a targeted act: “Takedown

notices are a well-k nown means to address websites display-

ing infri nging content, but in t hat instance, you know what

the website is or who to contact ,” he explains.“Here, you

don’t.” Hedges concurs. “We just don’t know if the DMCA

is an effective rem edy [against illeg al downloading],” he

adds. “It hasn’t been used enoug h in that area.”

The court den ied Strike 3’s requested di scovery on mul-

tiple alternative grou nds, including th at the subpoenas pre-

sented “too great of an oppor tunity for m isidentication” of

potential inf ringers. The court faulted Str ike 3 for minimiz-

ing “the substanti al prejudice that may inure to a subscriber

from the release of its private i nformation and the possible

false identic ation in a lawsuit.” This concern, Sect ion lead-

ers observe, is key to the c ourt’s ruling .

As Hedges notes , “in a judge’s mind, ‘John Doe’ is a n

individual. Th at’s not necessarily so, but t he assumption

is that it’s a person who could potent ially be embarra ssed,

not a business.” Steger agree s, observing that the court ’s

concerns “might not have applied i f it were clear that the

accused inf ringers were businesses.”

Because the d iscovery was ex part e, Hedges adds, the

court’s concerns were heig htened: “The defendants have not

even been identie d, much less served with the complaint ,

and the court ha s to be extremely ca reful when allowing dis-

covery of them without them e ven knowing,” Hedges con-

cludes.

Digital versio ns of the Civil Procedure s tories, including lin ks to

resources an d authorities, are availab le at http://bit.ly/LN-civp ro.

Pleading Standard Heightened for

Anonymous Online Activity

By John M. McN ichols, Litigation News Contributing Editor

AMERICA N BAR ASSOCIATION FALL 2020 • VOL. 4 6 NO. 1 | 21