The SINGLE MOST IMPORTANT THING TO DO if you received a Strike 3 torrent subpoena
This blog provides the ONE THING Strike 3 Holdings, LLC does NOT want you to know they are trying to sue your IP address in a court of law. This is NOT legal advice and general information only. Discuss with your copyright counsel.
Short intro on Torrent litigation for illegal file-sharing of porn videosWhen you are sued in Federal court for illegally downloading movies, at least in the 9th Circuit where the "Cobbler Nevada" case applies (ex. Montana, Utah, Idaho, Washington, Arizona, California and Nevada), the Plaintiff "Strike 3 Holdings, LLC" has to essentially "put you behind the wheel" (like in a DUI case they have to show you were the in control of the vehicle). When you are accused of illegally downloading their adult pornography movies, such as VIXEN, BLACKED, and TUSHY, typically they will sue you as a "John Doe Defendant" and will sue your IP address (not you personally since they do not know your name). They will then seek "early discovery" in Federal Court (many times now they are also filing a "Bill of Discovery" action in Florida Miami-Dade County trying to get your name and address there. That is beyond the scope of this blog post. So, say you are in federal court, and they are seeking your name and address so they can "look you up," nowadays the Courts in California - such as the Northern District and the Central District where many copyright infringement cases are filed by the Bandlow Law Firm, the judges will basically make you turn this information over to the Plaintiff. Yes, even if you did not do the downloading, seeding, or file-sharing. In other words, you may only be a "subscriber" of an internet account and not the downloader. At any rate, Strike 3 will get the account holders name and address from the ISP (such as Cox, Comcast, Frontier, Verizon, Webpass, etc.) due to the fact that a subpoena has been served on them. Since it is now likely that you will have to turn over your information, it is important to understand the MOST IMPORTANT THING YOU NEED TO KNOW to prevent your case from moving to the next step of litigation (where you will have to respond to the complaint, and possibly wind up defending yourself in a federal court).
MOST IMPORTANT TIP is to set your social media accounts to PRIVATE!Now, it is important to understand from the outset that you never want to delete or destroy evidence when you are involved in a lawsuit. Many times, the opposing counsel will send a "litigation hold letter" but in Strike 3 defense cases, I normally do not receive such a notice, but I consider it a duty nonetheless to be very careful about what you are doing with potentially relevant evidence (such as downloaded torrent movie files). However, your social media accounts are normally able to be set to "PRIVATE" without deleting anything and this will help prevent Strike 3 from snooping around the internet after they get your name and address, looking for evidence that will help them meet the Cobbler standard, in other words, posts, likes, comments or interests that may tend to indicate that you are not only the SUBSCRIBER to the internet account, but that it is PLAUSIBLE (low standard) you are also the porn movie INFRINGER such that they can continue to pursue you for a huge settlement amount, including attorney fees, in a court of law. Yes, this still goes on even with Covid pandemic hurting many of my clients financially, and sometimes health-wise.
By setting your facebook, twitter, and other social media accounts to private (see links below for video HOW TO), they will still be able to run an "asset search" to see if you are financially worth pursuing, however, to meet the 9th circuit Cobbler criteria to "show something more" than just an internet subscriber, searching social media is one of their favorite ways they find this proof - which gets added to an amended complaint as "additional evidence." What are some examples of what they can find if your account is NOT set to private and open for the public, including Strike 3 investigators to review?
1. Twitter - you are following porn star(s) which tends to show you have an interest in porn and likely to be more than just a subscriber. Note we had one client tell us a porn star reached out to him AFTER he was sued, whether this was intentional or not, nobody knows.
2. Facebook posts - indicating you like a certain VPN, porn star, or have certain likes and interests in torrenting.
3. LinkedIn - they may look at your "skills" (such as technology advisor, or web developer) to try to show that you are familiar with technology and likely to be an infringer of their movies. Whether this evidence would pass Cobbler muster is something that could wind up being litigated, for example, in a motion to dismiss the federal court complaint.
We know strike 3 is looking at these things, and searching the internet to try to make these connections that, if sufficient, will allow them to move to the next stage of litigation (and likely force a settlement).
At any rate, if they cannot search your social media profiles (ex. Instagram), they will have more difficulty in trying to pursue a case where their evidentiary connection is tenuous at best. This is not spoiling or deleting evidence, but rather, taking it out of the purview of the Plaintiff counsel who is trying to pursue a settlement for their client.