Did you receive a notice from your internet company such as Comcast, Charter Communications/ Time Warner Cable or Optimum Online about a subpoena to reveal your name received from Strike 3 Holdings LLC? Read on.
Movie company Strike 3 Holdings LLC is suing many people in New York, New Jersey, Connecticut, Michigan and California for allegedly downloading its adult entertainment movies using file-sharing technology called BitTorrent. This article analyzes the movie company’s motion to the court justifying its desire to obtain the names and addresses of Optimum Online (CSC Holdings LLC) account-holders. Strike 3 Holdings LLC does this through a motion for “early discovery”, by issuing a subpoena.
If your internet address (“IP address”) is involved, your first notice of the lawsuit will probably be a letter or email from Charter Communications/ Time Warner Cable or Optimum Online (CSC Holdings LLC) about the copyright infringement lawsuit, your right to file a motion to quash or vacate the subpoena, and a copy of a subpoena from Strike 3 Holdings LLC.
Set up a free consultation to discuss the specifics of your case, or keep reading below for more information on what you can expect from your case with Strike 3 Holdings LLC.
The Strike 3 Holdings LLC lawsuit is a federal copyright infringement lawsuit in which the owner of the adult entertainment brands Tushy, Vixen, and Blacked allege that internet users (here, Optimum Online users) illegally obtained their movies for free using file-sharing technology called BitTorrent.
The lawsuit seeks money through statutory damages under the US Copyright Act potentially up to $150,000 (this amount of an award is rare) plus their attorneys fees and costs, for every movie they can prove to the court they: 1) own the copyright 2) the defendant illegally downloaded. This is a broad summary but at this point its all that probably matters for you to know.
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Already know you want to speak with an attorney? Speak for free with Antonelli Law Defense by calling us nationwide at 312-201-8310 or use our confidential contact form below. Antonelli Law and our local counsel for New York have helped protect many people from BitTorrent copyright infringement lawsuits just like the Strike 3 Holdings LLC lawsuits. We will talk with you for free and explain each of your legal options including:
1) Have us negotiate an anonymous settlement on your behalf with Strike 3 Holdings LLC
2) File a motion to quash the subpoena it issued to your ISP, or
3) Defend your innocence in court.
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Strike 3 Holdings First Has to Find Out Who the Optimum Online Internet Users Are
When Strike 3 Holdings LLC filed the lawsuit, all it had as evidence was a computer’s IP addresses (like 22.214.171.124) to try to identify which internet account is associated with that IP address. They can easily determine that on the date and time of the alleged movie downloads that IP address ”126.96.36.199” was an Optimum Online customer. But on its own, the movie company cannot tell which Optimum Online customer it was.And it can’t serve a lawsuit on an IP address. Strike 3 Holdings needs a name and address.
Optimum Online already knows which of its New York customers was assigned IP address ”188.8.131.52”. But internet users are entitled to protection from their identities being revealed in connection with their internet activity. So, the movie company Strike 3 Holdings must ask a federal judge for permission to issue a subpoena compelling Optimum Online to reveal who the internet subscriber is (their name and address) IP address ”184.108.40.206”
Strike 3 Holdings Filed a Motion in Court To Justify Revealing Who the Defendant Is
Strike 3 Holdings filed a motion with the Court to obtain permission to issue a subpoena to Optimum Online. This motion’s technical name is “Motion For Leave to Issue a Third party Subpoena Prior to a Rule 26(f) Conference”. I’ll just call it the ISP subpoena for your reading ease. This ISP subpoena request has several parts. The entire motion is embedded below, but here is a summary:
Strike 3 holdings Tells the Court:
- Strike 3 hired an investigator, IPP International U.G., to monitor and detect the
infringement it faces. IPP discovered that Defendant’s IP address was illegally distributing
several of Strike 3’s movies. Strike 3’s independent forensic expert, Jeff Fischbach, reviewed
the evidence captured by IPP and confirmed Defendant’s IP address was involved in an
infringing transaction at the exact date and time reported by IPP.
Strike 3 only knows Defendant by his or her IP address.
- Strike 3 Holdings LLC is the owner of the Work (the copyrighted movie, in other words), which is an original work of authorship. Defendant copied and distributed the constituent elements of Plaintiff’s Work using the BitTorrent protocol. At no point in time did Plaintiff authorize, permit or consent to Defendant’s distribution of its Work, expressly or otherwise.
- IPP’s forensic servers connected to an electronic device using IP Address 220.127.116.11. After this connection, Defendant’s IP Address of 18.104.22.168 was documented distributing to IPP’s servers multiple pieces of Strike 3’s copyrighted movie titled Eva Chapter 4 at exactly 08/20/2017 22:10:57. Each piece was recorded in a PCAP, which stands for “packet capture” and is a forensically sound interface for recording network traffic. (DECLARATION OF TOBIAS FIESER of IPP). Emphasis added).
- IPP’s software determined that the file being distributed by Defendant’s IP Address of 22.214.171.124 at 08/20/2017 22:10:57 has a unique identifier of the Cryptographic Hash of 2F3 7046EC89B3AD7ED74 C2940723618BFD1 A4721. 11. IPP’ s software downloaded a full copy of the digital file identified by the Hash of 2F37046EC89B3AD7ED74C2940723618BFD1A4721, and I confirmed this file is a digital movie file. I further viewed this file and determined it was substantially similar to Strike 3 ‘s copyrighted movie titled Eva Chapter 4. (DECLARATION OF TOBIAS FIESER of IPP)
NOTE: The “pieces” are not described in any articulated way. on its face, we can’t tell the size or nature of each piece” – is it even enough data to produce a flicker of one frame image of the movie? Is this enough to state a claim for copyright infringement? A judge might find it is not.
- Jeff Fischback is the Founder and President of SecondWave Information Systems, a technology consulting firm specializing in information systems and technology integration based out of
Chatsworth, California(DECLARATION OF JEFF FISCHBACH).
- Jeff Fischback received a PCAP from IPP containing information relating to the transaction
occurring on 08/20/2017 22:10:57 involving IP address 126.96.36.199.
Case 2:17-cv-05606-SJF-AKT Document 5-4 Filed 10/01/17 Page 1 of 2 PageID #: 44
2 ISLP-1001-01 Exhibit C
10. I used a program entitled Wireshark to view the contents of the PCAP.
11. I was able to confirm that IPP recorded the transaction with 188.8.131.52 at
08/20/2017 22:10:57. The IP Address is owned by Optimum Online (CSC Holdings LLC).
Again, this declaration by Jeff Fischback adds nothing about how much data was allegedly captured from IP address 184.108.40.206. Is it enough to state a claim for copyright infringement? A judge might find it is not.
Motion for ISP Subpoena by Strike 3 Holdings LLC NY
What Are These Lawsuits About?
Critics of these BitTorrent copyright infringement lawsuits say its about the movie company generating more revenue. The movie company says it is filing these lawsuits to stop piracy of its intellectual property.
What is My First Notice If I Am Targeted In A Lawsuit?
If your internet address (“IP address”) is involved, your first notice of the lawsuit will probably be a letter or email from Comcast, Optimum Online, Verizon, Spectrum, or Time Warner and a copy of a subpoena from Strike 3 Holdings LLC.
The letter should tell you the date and time the movie was allegedly downloaded the case name and number, and inform you of your legal right to file a motion to quash or vacate the subpoena it received, by a certain date.
This is the time to talk with us about either having us negotiate an anonymous settlement, file a motion to quash subpoena, or prepare for your defense in court. We cannot help you remain anonymous after the internet company releases your information to the movie company, but can still help you negotiate a fair and confidential release as part of a settlement, or prepare for your defense in court.
What Can Antonelli Law Do For Me?
Antonelli Law will help you decide what to do about the Strike 3 Holdings LLC letters, subpoenas, and summons. We have helped many people accused of downloading movies over the internet in these types of lawsuits.
Remember, don’t panic. Learn the facts and your legal options by speaking for free to an Antonelli Law attorney confidentially nationwide at 312-201-8310 or use the contact form here.
Our clients say Antonelli Law is very good at:
- Reducing your anxiety about the problem
- Giving clear information to help you decide what to do
- Responsive and accessible via phone and email
- Tenacious and effective lawyers in lawsuit litigation
We understand the shock you may be feeling from receiving a notice of this action, and have the experience to help you deal with this in the best way possible for you: anonymous settlement, or prepare to fight back.
Antonelli Law is the Most Experienced BitTorrent Copyright Defense Firm in the Country
We can help you learn your legal options if you received an ISP letter informing you a subpoena for your identity was received, a settlement demand letter from the movie company’s attorneys, or if you are served with a summons or waiver of service of summons. We have helped nearly 2,000 people nationwide affordably defend themselves from over 50 different movie companies.
Read Even More Details Below About the Lawsuit and How to Defend Against It
- Don’t Sign a Waiver of Service of Summons Form Before Speaking with an Attorney
As defense attorneys, we are concerned that people who receive a Waiver of Service of Summons form in the mail from the movie company’s lawyer this will lead to an unfair default judgment against them. If you receive one of these forms, please speak with us before signing anything.
2. Consider Filing A Motion to Quash Subpoena in the Strike 3 Holdings LLC Case
The best reason for filing a motion to quash subpoena is if a now-anonymous defendant can manage to remain anonymous, it is possible the movie company may never be able to serve him or her with a court Summons and lawsuit Complaint.
That would be a terrific win for the defense, before the case even got started and before the expensive litigation processes of discovery and motions for summary judgment are filed. To do that, we argue that the lawsuit Complaint cannot stand up to a motion to dismiss the complaint. Therefore, if the lawsuit Complaint is not good enough there is no good reason for the subpoena to the ISP to proceed.
The Evidence Needed to Prove Copyright Infringement by Strike 3 Holdings LLC
Strike 3 Holdings LLC must show to the Court that:
- It has ownership of a valid copyright and
- The defendant violated the copyright owner’s exclusive rights under the Copyright Act.
We Could Not Find Sufficient Allegations of Evidence by Strike 3 Holdings LLC
We examined the court filings of Strike 3 Holdings LLC in case number 2:17-cv-05606 filed in the United States District Court for the Eastern District of New York. We also reviewed the motion and exhibits in the case above, 17-cv-05606 Strike 3 Holdings LLC v JOHN DOE subscriber assigned IP address 220.127.116.11 From this review, we did not see that the movie company alleged sufficient evidence to show that its copyright was violated by the defendants it accuses.
For the reasons that follow below, we believe filing a motion to quash subpoena to stop the internet company from releasing the name and address of the unnamed Defendant could be justified. Stated simply, when we looked at the court filings by Strike 3 Holdings we found in our opinion a lack of evidence of copyright infringement in the lawsuit’s complaint.
For example, Strike 3 Holdings LLC claims in its lawsuit Complaint at paragraph 35: “IPP downloaded from Defendant one or more pieces of the digital media file containing Strike 3’s movie” (emphasis added)“
One or more pieces? Is this even enough data to produce a flash of one image of the movie? If so this may qualify as a defense for what is called “de minimis” copyright infringement, which may entitle the movie company to nothing. You can read more about “de minimis” copyright infringement as well as the fair use defense here.
Finally, if you are curious you can read these filings for yourself by viewing the embedded Complaint below.
In our review of these court filings, in our opinion Strike 3 Holdings LLC has simply failed to allege sufficient evidence to show that its copyright was violated by the defendant it accuses.
In other words:
From what we saw, nothing was said about the size or contents of the portions of the work actually downloaded from the defendants’ IP addresses
Strike 3 Holdings LLC Complaint 17-cv-05606 New York
What Are Movie Downloading Cases in General About? What Are “Copyright Troll” Lawsuits?
If you want to read more, consider reading the article I wrote about “copyright troll” litigation which was published by the Illinois State Bar Association’s Intellectual Property Section:
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What Are the Strike 3 Holdings LLC Case Information in New York?
The cases are as follows:
Strike 3 Holdings LLC v Doe
Jacqueline M. James represents Strike 3 Holdings LLC in New York cases.
What Are the Strike 3 Holdings LLC Case Information in Connecticut?
The cases are as follows:
- Strike 3 Holdings, LLC v. Doe 5:17-cv-01667
Attorney Jacqueline M. James represents Strike 3 Holdings LLC in Connecticut cases.
What Are the Strike 3 Holdings LLC Case Information in Michigan?
- Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 18.104.22.168 2:17-cv-13279
- Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 22.214.171.124 2:17-cv-13280
- Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 126.96.36.199 2:17-cv-13281
- Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 188.8.131.52 2:17-cv-13282
- Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 184.108.40.206 2:17-cv-13283
Attorney Joel A. Bernier of the law firm BOROJA, BERNIER & ASSOCIATES PLLC represents Strike 3 Holdings LLC in Michigan
STRIKE 3 HOLDINGS JUDGE: “RISK OF FALSE POSITIVE IDENTIFICATIONS” – ISP Subpoena Defense