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Hundreds of thousands of BitTorrent pirate users have been sued over the years. These cases rarely go to trial, but in a Florida court, this is about to happen. However, before the trial begins, several outstanding issues, including the use of the term "copyright troll" must be decided before the jury.
In recent years, adult entertainment company Strike 3 Holdings has filed thousands of cases in US federal courts.
These lawsuits are directed at people whose Internet connections were allegedly used to download and share copyright-infringing content via BitTorrent.
Try to share rare files
Many of these cases result in private settlements and are never heard from again. However, on occasion, a defendant decides to back down and a case filed against a "John Doe" in federal court in Florida is now headed for trial.
It is unusual for a file sharing case of this type to be so litigated. The prospect of a possible jury trial is even rarer, but a few days ago the parties filed their joint preliminary statement, bringing trial one step closer.
The case is highly nuanced, but at its core, the main question is whether John Doe downloaded and shared 36 of the Strike 3 porn videos without permission. According to the adult company, the evidence is clear as day.
Strike 3 Hacking Evidence
In the pre-trial statement, Strike 3 explains that it repeatedly found that an IP address, assigned to John Doe, shared the pirated movies. This is supported by technical evidence, as well as other expert testimony.
The adult company further accuses the defendant of destroying evidence by erasing data from his desktop computer, mishandling a hard drive and reinstalling the operating system on his laptop.
โEven if Doe was not the offender, he made sure to destroy and hide evidence of his innocence,โ Strike 3 writes in the pretrial statement.
The alleged misconduct is made worse by the defense's "fee split" agreement, Strike 3 argues. The lawyers would allegedly submit a higher fee to the court than they billed Doe, and agreed to "split" the difference between themselves. and his client.
John Doe Accountants
The defense characterizes the "rate split" allegations as a red herring. Instead, they bring the evidence of Strike 3 to the court's attention, suggesting that it is below par.
The adult company uses tracking software to monitor IP addresses in BitTorrent swarms. Like other rights holders, this is recorded in the 'PCAP' evidence files. However, Strike 3 internally developed "VXN" tracking technology. This makes it little more than 'circumstantial' evidence.
โStrike 3 computer system: 'VXN' used to collect PCAPs in 2019, was not tested by Strike 3 until 2022. VXN had no user manual, no design documentation, and was never verified by an independent third party . There is no known false positive rate for VXN as it was never measured,โ Doe's lawyer writes.
The defense filed a motion in limine ask the court to exclude this evidence from the trial.
In addition, the defense wants the court to exclude evidence taken from Doe's social media profiles and comments from her neighbors, who testified about the strength of her WiFi signal.
ban trolls
Strike 3 also filed a motion in limine to restrict the information the defendant can use at trial. Among other things, the company does not want the term "copyright troll" to be used.
The copyright troll moniker is often applied to companies that file many piracy lawsuits against individuals. Even courts have used the term, although there is no official definition.
However, according to Strike 3 it becomes clear that being called a 'troll' is not a positive thing and he wants to prevent a jury from being influenced by this type of 'harmful' language.
โThrough pundit Dr. Eric Fruits, Doe has called Strike 3 a 'copyright troll,' or 'troll,' a term that has no set legal or dictionary definition, but is undeniably negative,โ he writes. Strike 3.
"Insults have no place in civil litigation," the company's lawyers add, noting that the label is inaccurate and therefore irrelevant.
Similarly, the adult entertainment company also wants to exclude blogs, media, and other internet coverage from the potential body of evidence, as they contain subjective commentary.
โThe Court must also prevent Doe from referring to any internet blog, media coverage, or article about Strike 3 for any purpose,โ Strike 3 writes.
โInternet and media articles are targeted at Plaintiff and his attorney and contain biased, slanderous and prejudicial comments and should not be brought up at trial for any reason.โ
Going forward
The court has yet to decide on these and other requests to exclude evidence before the trial can begin. Additionally, both sides have filed motions for summary judgment that could still affect the course of the case.
Earlier this week, the parties attempted to reach an agreement in court through a mediation process, but ultimately reached an impasse.
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A copy of the pre-trial depositions can be found. here (pdf)and in limine motions are available here (1, 2pdf)
