Over the past several years, adult entertainment company Strike 3 Holdings has filed thousands of cases in U.S. federal courts.
These lawsuits target people whose Internet connections were allegedly used to download and share copyright-infringing content via BitTorrent.
Rare Files-Sharing Trial
Many of these cases result in private settlements and are never heard of again. On occasion, however, a defendant decides to push back and a case filed against a “John Doe” at a Florida federal court is now heading to trial.
It’s unusual for such a file-sharing case to be so heavily litigated. The prospect of a potential jury trial is even rarer but a few days ago the parties submitted their joint pretrial statement, bringing a trial one step closer.
The case has plenty of nuances but, in essence, the main question is whether John Doe downloaded and shared 36 of Strike 3’s porn videos without permission. According to the adult company, the evidence is clear as day.
Strike 3 Piracy Evidence
In the pretrial statement, Strike 3 explains that it repeatedly found that an IP address, assigned to John Doe, shared the pirated movies. This is backed up by technical evidence as well as other expert testimony.
The adult company further accuses the defendant of destroying evidence by wiping data from his desktop computer, mishandling a hard drive, and reinstalling the operating system on his laptop.
“Even if Doe were not the infringer, he made sure to destroy and conceal evidence of his innocence,” Strike 3 writes in the pretrial statement.
The alleged misconduct is made worse due to the defense’s “fee-split” agreement, Strike 3 argues. The lawyers would allegedly submit a higher fee to the court than they billed the Doe, and agreed to “split” the difference between themselves and their client.
John Doe Counters
The defense characterizes the “fee split” allegations as a red herring. Instead, they draw the court’s attention to Strike 3’s evidence, suggesting that it’s below par.
The adult company uses tracking software to monitor the IP-addresses in BitTorrent swarms. Similar to other rightsholders, this is then recorded in ‘PCAP’ evidence files. However, Strike 3 developed the “VXN” tracking technology in-house. This makes it little more than ‘circumstantial’ evidence.
“Strike 3’s computer system: ‘VXN’ that was used to collect the PCAP’s in 2019, was not tested by Strike 3’s until 2022. VXN had no user’s manual, no design documentation, and was never verified by an independent third party. There is no known false positive rate of VXN, since it was never measured,” Doe’s attorney writes.
The defense submitted a motion in limine asking the court to exclude this evidence from trial.
In addition, the defense wants the court to exclude evidence taken from Doe’s social media profiles and comments from his neighbors, who testified on the strength of his WiFi signal.
Troll Ban
Strike 3 has also submitted a motion in limine to restrict information the defendant can use at trial. Among other things, the company doesn’t want the term “copyright troll” to be used.
The copyright troll moniker is often applied to companies that file many piracy lawsuits against invividuals. Even courts have used the term, even though there’s no official definition.
According to Strike 3 it is clear, however, that being called a ‘troll’ isn’t something positive and it wants to prevent a jury from being influenced by this type of ‘prejudicial’ language.
“Through the expert Dr. Eric Fruits, Doe has called Strike 3 a ‘copyright troll’ or ‘troll,’ a term that has no established legal or dictionary definition, but which is undeniably negative,” Strike 3 writes.
“Name-calling has no place in civil litigation,” the company’s lawyers add, noting that the label is inaccurate and thus irrelevant.
In a similar vein, the adult entertainment company also wants to exclude blogs, media, and other Internet coverage from the potential pool of evidence, as these contain subjective comments.
“The Court should also preclude Doe from referring to any Internet blogs, media coverage, or articles on Strike 3 for any purpose,” Strike 3 writes.
“The Internet and media articles target Plaintiff and its counsel and contain comments that are biased, slanderous, and prejudicial, and should not be referred to at trial for any purpose.”
Going Forward
The court has yet to decide on these and other requests to exclude evidence before a trial can get underway. In addition, both parties have submitted motions for summary judgment which could still impact the course of the case.
Earlier this week the parties attempted to reach a settlement in court through a mediation process, but they eventually reached an impasse.
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A copy of the pretrial statements can be found here (pdf), and the motions in limine are available here (1, 2, pdf)
