Over the last two years, a maker of “high-end, artistic” pornography has been suing people in New Jersey and across the country for what the company believes is the illegal downloading of the company’s movies via peer-to-peer sharing networks like BitTorrent.

Attorneys for Strike 3 Holdings LLC maintain its practice of filing thousands of lawsuits is the best way to protect the copyrighted material it distributes on subscription porn sites like Vixen and Tushy. Another adult film company, Malibu Media, has used the same litigious methods since 2012.

Opponents call the companies "copyright trolls” because of the way they track down targets via their IP addresses and then sue them with cookie-cutter civil complaints — over 11,000 to date. Attorneys who defend against the suits say their clients feel pressured to pay settlements because it could cost more to fight in court and they fear their names being made public.

But a recent decision by a judge in New Jersey could shake up Strike 3’s efforts to collect from alleged infringers in the Garden State and beyond.

Joel Schneider, a magistrate judge in U.S. District Court in Camden, ruled Oct. 24 that the company should not be able to file suits against “John Does” identified only by their IP addresses and then obtain the subscribers’ real names by subpoenaing internet service providers.

An IP, or internet protocol, address is the unique identifier for any device connected to the internet.

Generally, judges all over the country have been granting requests from Strike 3 and Malibu Media for those subpoenas. (Strike 3 says that in New Jersey, judges granted them in 95% of its 363 suits here.) Once the lawyers get the subscriber’s name, they can try to settle the case or name the person in the suit and seek a judgement against them.

But Schneider bucked the trend with his recent decision, even reversing his own previous rulings granting the subpoenas.

The ruling isn’t precedential — meaning other judges don’t have to follow it — and Strike 3 has appealed. But attorneys who have fought these cases say it’s possible Schneider’s decision could give other judges a reason to reconsider next time a subpoena request comes before them.

"It shows that judges can change their minds about these cases, which is important,” said Jeffrey Antonelli, whose Chicago firm has defended thousands of these copyright infringement suits.

Schneider himself was inspired to reconsider the subpoenas after reading a decision by another federal judge, Royce Lamberth in Washington, D.C., he said in his ruling. Lamberth dismissed a Strike 3 suit a year ago in a blistering opinion, saying the company uses the court "as an ATM” to collect settlements. Strike 3 is appealing that too.

Greg Lansky of Strike 3 Holdings accepts the award for best director during the 2017 Adult Video News Awards.Getty Images

Leslie Farber, a Montclair attorney who has represented defendants against Malibu Media and Strike 3, said she doesn’t know whether Schneider’s decision could change other judges’ minds.

“I know Strike 3 thinks it might have that effect,” she said. Farber said Strike 3’s attorney in New Jersey, John Atkin, is already asking a judge in a copyright suit in Newark to consider all his counter-arguments to Schneider’s decision, in case the Newark judge is leaning toward following Schneider’s lead.

Atkin and another lawyer for Strike 3, Lincoln Bandlow, did not return calls and emails seeking comment this week.

Also notable is that Strike 3 hasn’t filed a single copyright lawsuit since early August. Malibu Media, which would normally file dozens or hundreds in that same time period, has only filed six.

At the same time, Strike 3′s attorneys are trying something new: asking state court judges in Florida to grant the subscriber subpoenas under an archaic law. Antonelli said he believes the company is doing this “to reduce the risk of exposure to decisions like Judge Schneider’s." It’s a technique Malibu Media tried briefly back in 2012.

While both changes predate Schneider’s Oct. 24 ruling, the judge had by that point already held two hearings where he grilled the company’s attorneys and tech experts, court records show.

Schneider’s argument

Schneider’s 47-page opinion, which affects 13 cases before him, said he ruled against Strike 3 mostly because he doesn’t think the lawsuits could succeed in court.

That’s because the civil complaints are based on the claim that the subscriber at that IP address illegally downloaded the pornography via a bit torrent — but the company, at that stage of the suit — actually has no idea who used that connection to download it.

He said one of Strike 3’s attorneys, Bandlow, admitted that the company doesn’t know who at that IP address downloaded the material, or even if the subscriber lives at the same address. If the downloader was someone else using that internet connection, he said, the subscriber name helps them figure out who else to investigate.

"We do say it’s the subscriber because that’s what we’re going to need [for] the subpoena to help us get the further investigation,” Bandlow told Schneider at a hearing in May.

Schneider also said that judges should only grant requests like these in rare cases, because it’s inherently unfair when the defendant doesn’t know about the suit and can’t defend himself. He said the company’s interest does not outweigh that person’s right to have their information kept private — especially if they are innocent.

The judge also questioned the accuracy of Strike 3’s methods for matching the IP address and subscriber name, and said he did not believe Strike 3′s argument that subpoenaing the subscriber name is the only way to protect its copyright and deter infringers.

Atkin appealed Schneider’s decision, arguing that the judge unfairly expects Strike 3 to prove its allegations very early in the case, before it has a chance to get discovery. He said the lawsuits are the best way to deter specific infringers, and said Schneider was just plain wrong in his statements questioning the technology of IP addresses.

He also claimed Schneider ignored the "mountains” of decisions that went in Strike 3′s favor, while incorrectly applying reasoning from cases that didn’t. That includes a 2018 case where the 9th Circuit Court of Appeals ruled that simply being the named subscriber is not enough to prove that person is the infringer.

Strike 3 appeals

Since Schneider is a magistrate judge — a non-appointed judge who assists district judges — the appeal of his decision will be heard by a district judge in Camden, Noel Hillman.

The appeal of Lamberth’s decision is currently before the prestigious United States Court of Appeals for the District of Columbia Circuit - known in the legal world as the D.C. Circuit. A date has yet to be set for oral arguments.

Strike 3 needs to appeal to protect its ability to get subpoenas, but if an appellate court decides against them, it could mean the beginning of the end of their whole system for identifying and suing subscribers via their IP address.

But it could also turn out well for the Strike 3 and Malibu Media if the appellate court decision affirms that the courts are perfectly right to allow the subpoenas. The appellate decision would only be precedential within the same circuit court area, but it would suggest to judges everywhere that they consider interpreting the law the same way.

For now, it remains up to each individual judge to weigh Strike 3′s interest versus the "John Doe” subscriber, Antonelli said.

“The judge in the courtroom next door to Judge Schneider could have a totally different opinion,” he said.

Rebecca Everett may be reached at reverett@njadvancemedia.com. Follow her on Twitter @rebeccajeverett. Find NJ.com on Facebook.

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