Tag Archives: Anonymity

Court denies porn company’s request to unmask anonymous copyright infringers

Serial copyright plaintiff Strike 3 Holdings filed a number of copyright complaints against defendants – known only by their IP addresses – for copyright infringement. Since plaintiff needed to know the identities of the defendants to move forward, it asked the court for leave to seek expedited discovery. In a consolidated matter – addressing a number of complaints – the court denied the motion.

The main reason for denying the motion was that, in the court’s view, as pleaded, plaintiff’s complaints were futile – they did not meet the standard for a motion to dismiss under Rule 12(b)(6).

Further, even if plaintiff had pled a cognizable copyright infringement claim, the court would still have denied the requests for expedited discovery. Good cause for the expedited discovery did not exist because:

  • plaintiff based its complaints on unequivocal affirmative representations of alleged facts that it did not know to be true
  • plaintiff’s subpoenas were misleading and created too great of an opportunity for misidentification of the unknown defendants
  • the linchpin of plaintiff’s good cause argument, that expedited discovery was the only way to stop infringement of its works, was wrong – plaintiff could have sent takedown notices under the Digital Millennium Copyright Act
  • plaintiff had other available means to stop infringement besides suing individual subscribers in thousands of John Doe complaints
  • the deterrent effect of plaintiff’s lawsuits was questionable
  • substantial prejudice may have inured to subscribers who were misidentified; and
  • plaintiff underestimated the substantial interest subscribers had in the constitutionally protected privacy of their subscription information.

On balance, therefore, the court found that the overall administration of justice and the prejudice to subscriber defendants outweighed plaintiff’s interest in expedited discovery.

Strike 3 Holdings, LLC v. Does, 2019 WL 5446239 (D.N.J. October 24, 2019)

Plaintiff failed to make key arguments in bid to unmask anonymous online defendants

Plaintiff sued some unknown defendants for breach of contract and violations of the Computer Fraud and Abuse Act, based on the defendants’ deceptive conduct that tricked some internet users into signing up for plaintiff’s paid services. The unknown defendants would receive affiliate commissions from operating this scheme. This caused reputation problems for plaintiff.

Plaintiff sought early discovery to ascertain the identities of the unknown defendants. The court denied the motion.

The Federal Rules of Civil Procedure do not permit a party to seek discovery from the adverse parties in the case until all parties have conducted an initial conference under Rule 26(f). But when the defendants are unknown, that conference cannot take place. So the plaintiff needs to conduct discovery to find out who they are. In situations like these, for the required early discovery to occur and the unknown defendants to be identified (so that the conference can take place), the court must enter an order permitting early discovery.

A court can authorize early discovery to identify unknown defendants if there is good cause. In determining whether there is good cause, courts consider whether the plaintiff:

  • can identify the missing party with sufficient specificity such that the court can determine that defendant is a real person or entity who could be sued in federal court;
  • has identified all previous steps taken to locate the elusive defendant; 
  • has articulated claims against defendant that would withstand a motion to dismiss; and 
  • has demonstrated that there is a reasonable likelihood of being able to identify the defendant through discovery such that service of process would be possible.

In this case, the court found that plaintiff failed to identify the defendants with sufficient specificity, and did not demonstrate that each defendant was a real person or entity who would be subject to jurisdiction in the Northern District of California. Plaintiff had not explained why defendants would be subject to the jurisdiction of the court, as defendants’ activities seemed directed at Argentina, and plaintiff’s harm was felt in Argentina and other parts of Latin America. The only apparent connection defendants had with the Northern District of California was that they used domain name services from California companies. Plaintiff provided no authority to suggest this was sufficient to create jurisdiction.

Plaintiff also failed to explain what steps it had taken to locate defendants. Citing to Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999), the court noted that “[t]his element is aimed at ensuring that plaintiffs make a good faith effort to comply with the requirements of service of process and specifically identifying defendants.” 

In its motion, plaintiff only stated that there were no more practical measures that would permit it to identify the unknown defendants, but did not identify what measures – if any – were taken. For example, plaintiff was apparently able to identify defendants as affiliates, and that a contract existed, giving rise to legal liability. It was therefore not clear why plaintiff was unable to identify defendants based on the contract.

Binbit Argentina, S.A. v. Does 1-25, No. 19-5384, 2019 WL 4645159 (N.D. Cal., September 24, 2019)

See also:

Court allows blockchain platform to send subpoena seeking info about hacker

Plaintiff provides a blockchain asset trading platform and claimed that a hacker broke in and transferred 330,000 Tether and 100 Ether to a Bittrex account. Though Bittrex told plaintiff it had identified the relevant Bittrex account holder, it would not disclose the identity to plaintiff without a court order.

So plaintiff filed suit against the John Doe hacker for conversion, violation of the federal Computer Fraud and Abuse Act, and under Washington state law. Since it could not serve the complaint on the Doe defendant without knowing his identity, plaintiff sought permission from the court to take early discovery from Bittrex. The court granted the motion.

The court permitted plaintiff to send a subpoena to Bittrex requesting the name of the Doe defendant. Federal Rule of Civil Procedure 26(d) bars parties from seeking “discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.” Fed. R. Civ. P. 26(d)(1). In determining whether to permit expedited discovery, the court required plaintiff to demonstrate that “good cause” existed to deviate from the standard pretrial schedule.

In the Ninth Circuit, a court evaluating whether a plaintiff establishes good cause to learn the identity of Doe defendants through early discovery examines whether the plaintiff (1) identifies the Doe defendant with sufficient specificity that the Court can determine that the defendant is a real person who can be sued in federal court, (2) recounts the steps taken to locate and identify the defendant, (3) demonstrates that the action can withstand a motion to dismiss, and (4) proves that the discovery is likely to lead to identifying information that will permit service of process. This test is often associated with the case of Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578–80 (N.D. Cal. 1999).

In this case, the court found that good cause supported plaintiff’s request for leave to take expedited discovery to ascertain sufficient identifying information about the Doe defendant. Plaintiff had provided evidence that appeared to trace the allegedly stolen funds to an account on Bittrex, and plaintiff’s conversation with Bittrex indicated that Doe’s identity as the account holder was likely already known or ascertainable. The court also found that plaintiff’s request seeking identifying information related to Doe was reasonably likely to lead to the production of information that would permit plaintiff to serve process.

ZG TOP Technology Co., Ltd. v. John Doe, 2019 WL 917418 (W.D. Wash., February 25, 2019)

Should revenge porn victims be allowed to proceed anonymously in court?

Plaintiff and her twin sister sued her ex-boyfriend and an unknown John Doe accusing them of copyright infringement and other torts such as invasion of privacy. They claimed the defendants posted intimate and nude photos of plaintiffs online without their consent. And defendants had posted one of the plaintiff’s name and other information on social media in connection with the photos.

Arguing that they had a substantial privacy right that outweighed the customary and constitutionally-embedded presumption of openness in judicial proceedings, plaintiffs asked the court for permission to proceed anonymously. But the court denied the motion.

Plaintiffs’ privacy arguments

Plaintiffs had primarily argued that proceeding under their real names would require them to disclose information of the utmost intimacy and that if they were required to attach their names to the litigation, there would be a public record connecting their names to the harm and exploitation they had suffered which could result in even more people viewing the very images that were stolen and disseminated without their consent.

Court: the harm had already been done

The court rejected these arguments. It observed that the photographs had been published on the internet for approximately seven years and had been sent to people they know. Plaintiffs admitted that one of them could be identified in some of the photographs because her face and a distinctive tattoo were visible. And John Doe had already published that plaintiff’s contact information which resulted in her being inundated with phone calls, text messages, emails, and Instagram, Facebook, and Twitter messages.

So in the court’s mind it appeared that that plaintiff’s identity was already known or discoverable. In addition, that plaintiff had obtained copyright registrations for many of the photographs and the copyright registration was a public document that clearly identified her by name.

As for the twin sister, although her identity had not been similarly made public, the court found that “no great stretch [was] required to identify her through public records as [the other plaintiff’s] twin sister.”

Consequently, the court was not persuaded that plaintiffs’ privacy interests outweighed the public’s right of access in judicial proceedings.

M.C. v. Geiger, 2018 WL 6503582 (M.D.Fla. Dec. 11, 2018)

Bittorrent copyright plaintiff got much gentler treatment in New York federal court

Less than a week after a federal judge in Washington D.C. lambasted serial copyright plaintiff Strike 3 Holdings, calling it a “troll” and characterizing its tactics as “smacking of extortion,” another federal judge – this time in New York – gave Strike 3 much gentler treatment, finding that “there is no evidence to support Defendant’s conclusory claims that Plaintiff is engaging in copyright troll litigation tactics in the instant lawsuit”.

In the case of Strike 3 Holdings, LLC v. Doe, — F.Supp.3d —, 2018 WL 6166873 (W.D.N.Y, Nov. 26, 2018), the court denied the John Doe defendant’s motion to quash a subpoena sent to Doe’s ISP seeking to discover his identity so that plaintiff could serve him with the complaint.

The court did, however, include a nod to Doe’s privacy interests in ordering that he be permitted to proceed anonymously in the lawsuit. It modified the protective order to provide that the defendant not be referred to using his initials, but instead as “John Doe subscriber assigned IP address 69.204.6.161” in any public filings.

Strike 3 Holdings, LLC v. Doe, — F.Supp.3d —, 2018 WL 6166873 (W.D.N.Y, Nov. 26, 2018)

Evan Brown is a Chicago attorney helping clients in matters dealing with copyright, technology, the internet and new media. Call him at (630) 362-7237, send email to ebrown [at] internetcases dot com, or follow him on Twitter @internetcases

Anonymous online trademark infringer can be identified through subpoena to domain registrar

Plaintiff trademark owner noticed that an unknown party was using plaintiff’s mark to sell email templates online without plaintiff’s authorization. After the unknown infringer’s domain name registrar (the case does not say whether it was also the web host) refused to take down the allegedly infringing content, plaintiff filed suit against the “John Doe” defendant. Since it needed to learn the identity of the defendant to move the case forward, plaintiff asked the court for early discovery that would permit plaintiff to send a subpoena to the registrar that would compel the registrar to identify its customer.

The court granted the motion for leave to take early discovery. It applied the standard set out in OpenMind Solutions, Inc. v. Does 1-39, 2011 WL 4715200 (N.D. Cal. Oct. 7, 2011) (citing Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 578-80 (N.D. Cal. 1999)), which requires that prior to early discovery being permitted, a plaintiff must show:

  • Plaintiff can identify the missing party with sufficient specificity such that the court can determine that defendant is a real person or entity who could be sued in federal court;
  • Plaintiff has identified all previous steps taken to locate the elusive defendant;
  • Plaintiff’s suit against defendant could withstand a motion to dismiss; and
  • Plaintiff has demonstrated that there is a reasonable likelihood of being able to identify defendant through discovery such that service of process would be possible.

On the first factor, plaintiff had alleged that the Doe defendant owned or was using the specified domain name associated with the offending website to sell email templates using plaintiff’s trademark.

As for the second factor, plaintiff had contacted the domain name registrar, and asked that the information be taken down, but the registrar refused to do so. The domain name alone was not sufficient for plaintiff to identify the Doe defendant, and plaintiff had no other means to identify the Doe defendant besides the registrar’s record which it refused to provide without a subpoena.

Regarding the third factor, plaintiff made the required showing by alleging that it holds a valid trademark for its mark that the Doe defendant used to sell products on the offending website.

And concerning the fourth factor, the plaintiff had alleged that the registrar was the registrar for the domain name associated with the offending website and that it had stated it would pass the complaint information on to the website owner. The court found that plaintiff had thus demonstrated that a subpoena to the registrar should reveal the identity of the Doe defendant.

One should note this court’s willingness to permit early discovery as being in contrast to another court’s recent apparent disdain for a copyright troll plaintiff seeking the identity of an anonymous online infringer.

Marketo, Inc. v. Doe, 2018 WL 6046464 (N.D.Cal. Nov. 19, 2018)

Court labels copyright plaintiff as a troll and shuts down efforts to ID anonymous infringer

When a copyright plaintiff does not know who a particular alleged infringer is, it must first send a subpoena to the ISP assigned the IP address used to commit the alleged infringement. But the rules of procedure do not allow the sending of subpoenas until after the 26(f) conference – a meeting between the plaintiff and defendant (or their lawyers) to discuss the case. A plaintiff cannot have a 26(f) conference if the defendant has not been served with the complaint, and the complaint cannot be served unless the defendant’s identity is known.

So you can see the conundrum. To break out of this not-knowing, plaintiffs in situations like this will ask the court’s help through a motion for leave to take early discovery. That way the plaintiff can learn who the defendant is, serve the complaint, and move the case forward.

In the recent case of Strike 3 Holdings v. Doe, Judge Royce Lamberth of the U.S. District Court for the District of Columbia put a stop to the efforts of a plaintiff that it called a copyright troll right to its face (or at least right in the text of the opinion). The court denied Strike 3’s motion for leave to take early discovery to learn the identity of an unknown BitTorrent user accused of downloading pornography.

The court held that the plaintiff’s request was not specific enough, and the privacy interests of the unknown defendant, together with the social harm of being wrongfully accused of obtaining “particularly prurient pornography” were not outweighed by the trollish plaintiff’s need for the information.

Key to the court’s ruling was the idea that a subpoena in circumstances like this must be able to actually identify a defendant who could be sued. The court noted, however, that

Strike 3 could not withstand a 12(b)(6) motion in this case without resorting to far more intensive discovery machinations sufficiently establishing defendant did the infringing—examining physical evidence (at least the computers, smartphones, and tablets of anyone in the owner’s house, as well as any neighbor or houseguest who shared the Internet), and perhaps even interrogatories, document requests, or depositions. Strike 3’s requested subpoena thus will not—and may never—identify a defendant who could be sued.

The opinion is an entertaining read and conveys the judge’s clear frustration with copyright troll plaintiffs. Below are some of the more memorable quips.

Regarding the flaws of using IP addresses to identify people:

[Plaintiff’s] method [of identifying infringers] is famously flawed: virtual private networks and onion routing spoof IP addresses (for good and ill); routers and other devices are unsecured; malware cracks passwords and opens backdoors; multiple people (family, roommates, guests, neighbors, etc.) share the same IP address; a geolocation service might randomly assign addresses to some general location if it cannot more specifically identify another.

Regarding the public shame of being accused of infringing porn:

… But in many cases, the method is enough to force the Internet service provider (ISP) to unmask the IP address’s subscriber. And once the ISP outs the subscriber, permitting them to be served as the defendant, any future Google search of their name will turn-up associations with the websites Vixen, Blacked, Tushy, and Blacked Raw. The first two are awkward enough, but the latter two cater to even more singular tastes.

How trolls are quick to flee:

Indeed, the copyright troll’s success rate comes not from the Copyright Act, but from the law of large numbers. … These serial litigants drop cases at the first sign of resistance, preying on low-hanging fruit and staying one step ahead of any coordinated defense. They don’t seem to care about whether defendant actually did the infringing, or about developing the law. If a Billy Goat Gruff moves to confront a copyright troll in court, the troll cuts and runs back under its bridge. Perhaps the trolls fear a court disrupting their rinse-wash-and-repeat approach: file a deluge of complaints; ask the court to compel disclosure of the account holders; settle as many claims as possible; abandon the rest.

It’s pretty much extortion:

Armed with hundreds of cut-and-pasted complaints and boilerplate discovery motions, Strike 3 floods this courthouse (and others around the country) with lawsuits smacking of extortion. It treats this Court not as a citadel of justice, but as an ATM. Its feigned desire for legal process masks what it really seeks: for the Court to oversee a high-tech shakedown. This Court declines.

The court’s decision to deny discovery is anything but the rubber stamp approach so many judges in these kinds of cases over the past several years have been accused of employing.

Strike 3 Holdings v. Doe, 2018 WL 6027046 (D.D.C. November 16, 2018)

Puzzling privacy analysis in decision to unmask anonymous accused copyright infringers

Plaintiff porn company sued an unknown bittorrent user (identified as John Doe) alleging that defendant had downloaded and distributed more than 20 of plaintiff’s films. Plaintiff asked the court for leave to serve a subpoena on Optimum Online – the ISP associated with defendant’s IP address – prior to the Rule 26(f) conference. (As we have recently discussed, leave of court is required to start discovery before the Rule 26(f) conference, but a plaintiff cannot have that conference unless it knows who the defendant is.) Plaintiff already knew defendant’s IP address. It needed to serve the subpoena on the ISP to learn defendant’s real name and physical address so it could serve him with the complaint.

The court went through a well-established test to determine that good cause existed for allowing the expedited discovery. Drawing heavily on the case of Sony Music Entm’t, Inc. v. Does 1-40, 326 F. Supp. 2d 556 (S.D.N.Y. 2004), the court evaluated:

(1) the concreteness of the plaintiff’s showing of a prima facie claim of copyright infringement,

(2) the specificity of the discovery request,

(3) the absence of alternative means to obtain the subpoenaed information,

(4) the need for the subpoenaed information to advance the claim, and

(5) the objecting party’s expectation of privacy.

The court’s conclusions were not surprising on any of these elements. But it’s discussion under the fifth point, namely, the defendant’s expectation of privacy, was puzzling, and the court may have missed an important point.

It looked to the recent case involving Dred Pirate Roberts and Silk Road, namely, United States v. Ulbricht, 858 F.3d 71 (2d Cir. 2017). Leaning on the Ulbricht case, the court concluded that defendant had no reasonable expectation of privacy in the sought-after information (name and physical address) because there is no expectation of privacy in “subscriber information provided to an internet provider,” such as an IP address, and such information has been “voluntarily conveyed to third parties.”

While the court does not misquote the Ulbricht case, one is left to wonder why it would use that case to support discovery of the unknown subscriber’s name and physical address. At issue in Ulbricht was whether the government violated Dred Pirate Roberts’s Fourth Amendment rights when it obtained the IP address he was using. In this case, however, the plaintiff already knew the IP address from its forensic investigations. The sought-after information here was the name and physical address, not the IP address he used.

So looking to Ulbricht to say that the Doe defendant had no expectation of privacy in his IP address does nothing to shed information on the kind of expectation of privacy, if any, he should have had on his real name and physical address.

The court’s decision ultimately is not incorrect, but it did not need to consult with Ulbricht. As in the Sony Music case from which it drew the 5-part analysis, and in many other similar expedited discovery cases, the court could have simply found there was no reasonable expectation of privacy in the sought-after information, because the ISP’s terms of service put the subscriber on notice that it will turn over the information to third parties in certain circumstances like the ones arising in this case.

Strike 3 Holdings, LLC v. Doe, 2017 WL 5001474 (D.Conn., November 1, 2017)

About the Author: Evan Brown is a Chicago technology and intellectual property attorney. Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases. Read Evan’s other blog, UDRP Tracker, for information about domain name disputes.

Court allows Microsoft to unmask unknown Comcast users accused of infringement

A federal court in Washington state has given the green light for Microsoft to subpoena records from Comcast to discover the identity of the person or persons associated with an IP address used to activate thousands of unauthorized copies of Microsoft software.

Statue_of_Anonymus_(Budapest,_2013)

Generally, in federal court litigation, a party cannot serve discovery requests or subpoenas until after the plaintiff and defendant have conferred (in a Rule 26(f) conference). But when the plaintiff does not know the identity of the defendant, there is a bootstrapping problem – discovery needs to be taken to find out the defendant with whom to conduct the conference. In situations like this, the plaintiff seeking to unmask an unknown defendant will file its complaint against one or more “John Does,” then ask the court for leave to serve discovery prior to the Rule 26(f) conference.

That is what happened in this case. It is a common tactic used by parties legitimately seeking to enforce intellectual property, as well as parties that may be considered copyright trolls. See, e.g., this early bittorrent case from 2011.

Microsoft filed its complaint and also filed a motion for leave to take discovery prior to the Rule 26(f) conference. Finding that good cause existed for the early discovery, the court granted the motion.

It held that

(1) Microsoft had associated the John Doe Defendants with specific acts of activating unauthorized software using product keys that were known to have been stolen from Microsoft, and had been used more times than were authorized for the particular software,

(2) Microsoft had adequately described the steps it took in an effort to locate and identify the John Doe defendants, specifically by utilizing its “cyberforensics” technology to analyze product key activation data, identifying patterns and characteristics which indicate software piracy,

(3) Microsoft had pleaded the essential elements to state a claim for copyright and trademark infringement, and

(4) the information proposed to be sought through a subpoena appeared likely to lead to identifying information that would allow Microsoft to serve the defendants with the lawsuit.

Microsoft Corp. v. John Does 1-10, 2017 WL 4958047 (W.D. Wash., November 1, 2017)

Image courtesy Dmitrij Rodionov under Creative Commons Attribution-Share Alike 3.0 Unported license. Licensed granted hereby under same terms.

Complaint site does not have to identify its users

Petitioner filed an action in New York state court seeking to compel PissedConsumer.com to disclose the identity of the person or persons who posted certain statements to the site. These statements criticized petitioner for allegedly failing to fulfill an advertising promise to give the user a $500 gas card. The anonymous user went on to complain that petitioner “will forget about you and … all the promises they made to you” once “you sign on the dotted line.”

The trial court denied the petition to compel PissedConsumer.com to turn over the names of its users. Petitioner sought review with the Appellate Division. On appeal, the court affirmed.

It held that the lower court properly denied the petition since petitioner failed to demonstrate that it had a meritorious cause of action as required to obtain pre-action discovery:

Nothing in the petition identifies specific facts that are false and when the statements complained of are viewed in context, they suggest to a reasonable reader that the writer was a dissatisfied customer who utilized respondent’s consumers’ grievance website to express an opinion. Although some of the statements are based on undisclosed, unfavorable facts known to the writer, the disgruntled tone, anonymous posting, and predominant use of statements that cannot be definitively proven true or false, supports the finding that the challenged statements are only susceptible of a non-defamatory meaning, grounded in opinion.

The court seemed to recognize the importance of anonymous speech, and that one must not lightly cast aside its protections. If you’re going to go after an online critic, best have a cause of action that you can actually plead.

Woodbridge Structured Funding, LLC v. Pissed Consumer, — N.Y.S.2d —, 2015 WL 686383, (February 19, 2015)

Evan Brown is an attorney in Chicago helping clients with technology, intellectual property and new media issues.