Recently, 14 more BitTorrent-based copyright infringement lawsuits have been filed by Strike 3 Holdings (8 cases) and Malibu Media (4 cases) in Virginia. Since the beginning of the year, 2 dozen cases have been filed by these Plaintiffs. Although different companies, both Plaintiffs file remarkably similar lawsuits. Strike 3 Holdings owns the rights to adult films Vixen, Tushy, Blacked, and Blacked Raw and Malibu Media owns the rights to X-Art films.
Both Plaintiffs allege they hired investigators to monitor downloads of their films through BitTorrent networks. The investigators recorded the IP addresses of the downloaders, allowing the Plaintiff to file a copyright infringement lawsuit against the IP address. They argue that in order to properly identify and serve the defendant, they need to subpoena internet subscriber’s identity from the Internet Service Provider (e.g., Comcast, Charter, Time Warner, Optimum Online, Verizon, etc.). Of course, the subscriber may not be the downloader for a variety of reasons. Oftentimes many people have access to a single internet connection, however, the courts routinely grant the subpoenas.
Many people first find out about the lawsuit when they receive a notice from their ISP that the Plaintiff has subpoenaed their identity. The only way to fight the subpoena is to submit a Motion to Quash to the court to argue why the subpoena should be stopped (or “quashed”). However, these motions are complex. As the subpoena is between the Plaintiff and the ISP, the subscriber is actually a third party to the subpoena.
Many defendants wish to defend anonymously because federal civil lawsuits are generally public record and easily searchable. For those who wish to minimize the suit’s effect on their private and professional lives, it is vital they retain counsel without delay.
These notices are serious. If you do not respond, your ISP is obligated to provide your identity to the Plaintiff, which allows them to serve you with a summons and complaint. Once you are served, you typically have 21 days to respond in Federal court. If you do not respond to the complaint in court, the Plaintiff can ask for a default judgement, where damages can be in the $1,000s per infringement plus attorneys fees and costs.