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 decie 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 difcu 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 isidentication” 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 identic 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 identie 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
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