CAMDEN, N.J. – Reversing the ruling of a Magistrate Judge hearing the case, U.S. District Judge Noel L. Hillman ruled on Tuesday that Strike 3 Holdings, the adult company behind brands like Tushy, Vixen and Blacked, should be allowed to proceed with its subpoena seeking the identity of John Doe defendants accused of illegally downloading Strike 3 content.
“Without leave to seek identifying information for subscribers of the named-IP addresses, Plaintiff’s actions grind to halt, languishing on our docket until such time as the Court dismisses them for failure to prosecute or failure to make timely service,” Hillman wrote in his opinion.
Hillman added that in “finding that Plaintiff failed to state a prima facie claim, the Magistrate Judge considered material outside of the complaint and drew inferences against Plaintiff in determining the complaint would later fail, both of which constitute reversible error.”
Throughout his opinion, Hillman repeatedly notes places in which he thinks the lower court got ahead of itself, weighing issues and questions which aren’t relevant in deciding whether to allow Strike 3’s subpoena to be enforced.
Hillman wrote that because Strike 3 “has sufficiently stated a viable claim of copyright infringement against the identified IP addresses and its placeholder-defendant subscribers, Plaintiff should be provided with discovery to further assist it in identifying the underlying wrongdoer.”
“Any consideration of the merits of Plaintiff’s actions before permitting discovery to identify the placeholder-defendants, including whether Plaintiff has sued the correct Defendants, would be untimely,” Hillman added.
Having determined that Strike 3 should be allowed to move ahead with its subpoena, Hillman then turned to the question of whether “that discovery should be provided in an expedited fashion.”
“Common sense dictates that early discovery is required in this instance so these cases can either proceed or be dismissed,” Hillman wrote. “The good cause factors do not alter that conclusion.”
In finding that Strike 3 should get the expedited discovery it seeks, Hillman wrote “this Court is not aware of any other means by which Plaintiff could gather the information it seeks, and the narrow nature of its requests appear to provide the only reasonable way to obtain it.”
“In total, the Court finds the good cause factors weigh in favor or reversing the Magistrate Judge’s decision and permitting Plaintiff to proceed with expedited discovery of the nature sought,” Hillman added.
While Hillman was sympathetic to the risk of embarrassment and privacy concerns of the defendants, he said the appropriate way to address such concerns was through protective orders – not by stymying Strike 3’s ability to protect its copyrights through the courts.
Noting that the lower court “expressed concerns about risks associated with inadvertent identification or exposure of alleged infringers, who, later, are deemed to be misidentified” and that such a development could “expose that wrongly identified person to unwarranted embarrassment and ridicule,” Hillman said those worries are “are meritorious concerns that this Court does not view lightly.”
“In general, privacy rights do not grant users a license to infringe on copyrighted material,” Hillman wrote. “Thus, to the extent that anonymity is used to mask copyright infringement or to facilitate such infringement by subscribers or other persons, it is unprotected by the First Amendment.”
“In balancing Defendants’ privacy interests with Plaintiff’s right to pursue those who anonymously violate its intellectual property rights, this Court finds that entry of a limited protective order strikes the right balance of interest and that any concerns about misidentification or privacy exposure are easily assuaged through implementation of an appropriate protective order,” Hillman wrote.
Once the Magistrate Judge has entered his protective order, Hillman wrote that Strike 3 “shall be granted leave to serve Defendants’ ISPs with a Rule 45 subpoena seeking the names and addresses of the subscribers assigned to the IP addresses identified in the respective complaints, limited in scope to the time periods of the alleged infringing activity outlined in the respective complaints and exhibits thereto.” Hillman added that Strike 3 will also be “granted an extension of time within which to serve Defendants with process.”
“This Court leaves it to the able Magistrate Judge to determine the appropriate length of that extension, which may be impacted by the scope of the protective order entered,” Hillman wrote.
