If You’ve Received a Notice from Strike 3 Holdings or Malibu Media – Read This
Thirty-five more BitTorrent-based copyright infringement lawsuits have been filed in New York by Malibu Media (7 cases) and Strike 3 Holdings (28 cases). Malibu Media owns the rights to X-Art brand films and Strike 3 Holdings operates Vixen, Tushy, and Blacked. For any other type of Plaintiff, mass-filing these lawsuits would be extraordinarily difficult. These Plaintiffs, however, file nearly identical lawsuits, only changing the IP address accused of infringement and the list of alleged infringements. They allege their investigators observed an IP address repeatedly downloading the Plaintiff’s copyrighted works through BitTorrent networks and then sues each IP address for copyright infringement.
However, an IP address is merely a unique identifier for an internet connection. In order to find the proper defendant (that is the person that downloaded the files), the Plaintiff subpoenas the Internet Service Provider (e.g., Charter/Spectrum, XFinity/Comcast, Optimum/Altice, RCN, Verizon, etc.) for the subscriber’s identity. Some judges have noted that it’s dubious to assume the internet subscriber (the person that pays the bill) is the same person who downloaded the material. After all, many homes have multiple people who use the same internet connection – and unauthorized use can occur. The subscriber may not even live at the residence the internet is being provided for.
Yet, courts across the country have granted tremendous leeway to Malibu Media and Strike 3 Holdings to allow them to get the identities of internet subscribers to try to find a person willing to pay a settlement. The settlement amounts are carefully calculated to be just below the cost of an effective defense.
Most subscribers find out about the lawsuit when they receive a notice from their Internet Service Provider (ISP) notifying them that the Plaintiff has subpoenaed the subscriber’s identity. The ISP is obligated to comply with the subpoena unless a Motion to Quash is filed. This is a court motion to void or “quash” the subpoena. However, Motions to Quash are complex in these cases as the subpoena is between the Plaintiff and the ISP, meaning the subscriber is a third party. I’m happy to discuss with you whether filing a Motion to Quash or alternative motions is advisable in your case.
If you’ve received one of these notices or have been served with the lawsuit, it’s vital to retain counsel without delay. There are timelines imposed by the court that must be adhered to in order to defend yourself. This Plaintiff is notoriously aggressive and an effective defense can help secure the best possible outcome for you. Failing to respond in court once you have been served can result in a default judgement against you. Default judgments typically involve ruling in the Plaintiff’s favor and awarding thousands of dollars in damages per infringement in addition to the Plaintiff’s legal fees and costs.
For more information on what these lawsuits mean for internet subscribers, please check out our FAQ section.