Companies that file hundreds, even thousands, of copyright infringement lawsuits with the intent of seeking settlements to avoid litigation are often labeled "copyright trolls."
In the United States, the undisputed leader in this space is the adult video company Strike 3 Holdings, which owns brands such as Blacked, Tushy and Vixen. In 2021 alone, the company presented more 1,900 lawsuits of this type in US courts, but to our knowledge, not a single case has gone to trial.
However, that doesn't mean that Strike 3 isn't prepared to fight cases tooth and nail.
While most actions are quickly resolved behind the scenes, some may face a vigorous fight from the defendants. One such case has been running for over two years and has just taken a surprising turn, even by "copyright troll" standards.
Background to the case against 'John Doe'
The original lawsuit was filed in a Florida court against an anonymous defendant in March 2020 and was followed by a first amended lawsuit in August of the same year. According to Strike 3, the defendant used his Frontier Communications account to download and share 36 of his titles "over an extended period of time" using BitTorrent.
Also presented as evidence (allegedly collected by Strike 3's 'VXN Scan' monitoring tool) are lists of BitTorrent activity from the same IP address allegedly sharing other rights holders' content. The titles are expunged from the public records, but the obvious suggestion is that the infringement goes beyond the plaintiff's titles.
In November 2020, the defendant responded to the amended complaint, largely with denials or lack of knowledge, along with a counterclaim. He stated that since Strike 3 had been unable to prove any infringement, the court should issue a declaration of non-infringement along with an award of damages, in favor of the defendant.
Mediation in the case went nowhere, so once again Strike 3 went on the offensive with efforts to obtain information from third-party online services. That's not unusual in and of itself, but Strike 3 appears to be pushing the limits too far for the accused.
Looking for information from Google
In addition to looking up information from the ISP Frontier Communications (which is standard in these cases), Strike 3 also wants to access large amounts of data from the defendant's user account stored at Google.
Included in the request are all documents identifying basic Google account registration data, all data Google has about the subscriber's alternate email addresses, all IP addresses used to access the Google account from July 2019, all connection logs during the same period, plus logs related to purchases made across ALL Google products and services.
Strike 3 also wants the technical specifications of all the devices used by the defendant to access all of Google's services and products, documents identifying every file uploaded to Google Drive, every video uploaded to YouTube, and, this is a searing fact, all records held by Google related to internet searches by the defendant for terms including 'torrent', 'utorrent' and 'vpn' since July 2019.
This initial trove of personal information isn't enough for Strike 3. He also wants to access the defendant's Netflix account for evidence related to his lawsuit for adult movies, even though Netflix doesn't have porn.
So what information does Strike 3 want from Netflix?
The basic personal information that Netflix has about subscribers is detailed in a Support page but like many similar platforms, Netflix also creates user profiles to feed its algorithms. This data includes user interactions (viewing history and ratings), as well as specific preferences and likes.
To somehow support its accusations that the defendant is responsible for streaming 36 adult movies using BitTorrent, Strike 3 wants all of Netflix's basic registration data (full name, email address, phone number) plus additional information. , including a list of devices used to access the Service.
The adult film company is also demanding "Click Stream Information", that is, details of all actions taken by the defendant when logged into Netflix. This includes the profile and device names used, the details of each Netflix page visited, the URL of the websites the defendant visited before accessing Netflix, as well as the dates and times it happened.
Much like the subpoena that Strike 3 wants to send to Google, a lot of the information requested from Netflix is โโremoved from the subpoena. However, we can still see that Strike 3 wants to drill down into the defendant's devices with requests to receive unique device identifiers, device manufacturers, manufacturers of specific components like processors, and much more.
Things get even more intrusive with Strike 3's demand to access the defendant's gaming activities on Netflix, including games played, length of gaming session, and just about anything else the porn company can retrieve.
Unsurprisingly, defendant John Doe is rejecting this massive discovery effort.
Motion to vacate subpoenas from Google and Netflix
In a motion filed with the court, the defendant's attorneys say there is no need or good cause for the documents to be subpoenaed, primarily because they represent an invasion of privacy and are not proportionate to the needs of the case.
The first opposition against Google's subpoena lists many issues, noting that documents stored at Google would reveal private and personal information, including privileged communications with attorneys. YouTube's data request is "irrelevant" as there is no evidence that the defendant hosts infringing videos on the platform.
On the subject of search query data, the motion notes that such searches should be considered private, as they may also contain "very personal and sensitive matters, such as sensitive medical information, racial or ethnic origin, political or religious beliefs, or sexuality." ... โ
Regarding Netflix, the motion says that the request for access to "highly invasive personal information unrelated to the simple question of whether the Strike 3 movie data was downloaded to John Doe's computer" is unacceptable, while the access to game logs is "irrelevant" as Strike 3 does not distribute games.
โThere is no evidence that Netflix or Google were involved in the production, distribution, or financing of hard-core pornography. Instead, Strike 3 searches for irrelevant information from these two companies with the intent of collecting John Doe's personal account information from these two sources. This is patently an invasion of privacy. None of this personal account information is relevant to this case,โ the motion says.
In sum, counsel for John Doe believes that no reasonable attorney could believe in good faith that these broad subpoenas meet the court's proportionality requirements. Strike 3 must be sanctioned and the court must rescind the citations, the motion adds.
The First Amended Complaint and Answer here and herecitations for Google and Netflixand motion to vacate (all pdf)
