Strike 3 Holdings: Defendant Allowed Copyright Countersuit

Strike 3 Holdings: Defendant Allowed Copyright Countersuit

LOS ANGELES — The Ninth U.S. Circuit Court of Appeals granted summary judgment to a man who had been accused of downloading via BitTorrent copyrighted adult videos by Strike 3 Holdings, confirming his standing in his request for a declaration that he was not a copyright infringer and awarding him $47,776.63 in attorney fees and costs.

The John Doe, only identified as an ex-police officer in his 70s, had been identified by Strike 3 Holdings — copyright holder for the Vixen Media Group content — based on a IP address. He countersued Strike 3, rejecting their accusation and accusing them of “extortion through sham litigation.”

The individual testified he had been “married for 40 years, and, until he was sued, had never heard of the pornographic websites: ‘Blacked,' ‘Vixen,’ or ‘Tushy,’” Metropolitan News-Enterprise reported. He also testified that he “does not know who downloaded these movies.”

Strike 3 had already dropped their copyright infringement suit, and had appealed to the Ninth District to toss out the countersuit as well, claiming it was now moot.

The court opined that the John Doe retained a cause of action because he had a real concern that Strike 3 might sue him again.

“The pending litigation between Doe and Strike 3, coupled with the real threat of future litigation between the parties, constitutes the type of injury that confers constitutional standing,” wrote the three-judge panel.

Circuit Judge Johnnie Rawlinson, Senior Circuit Judge Jay Bybee and Senior District Court Judge Morrison C. England Jr. of the Eastern District of California, sitting by designation, affirmed a previous decision of District Court Judge Thomas S. Zilly of the Western District of Washington.

“Strike 3’s voluntary dismissal of its infringement claims against Doe placed him in the precarious position of deciding whether to pursue his non-infringement counterclaim or to surrender the claim and hope that Strike 3 would not bring further action based on his prior alleged infringement,” the judges continued.

“Doe’s fear of future prosecution, based on the very real prosecution to that point and the thinly veiled threats of fixture contributory-infringement claims, was concrete and imminent,” they added.

The opinion also noted that according to Strike 3’s lawyers’ own admission “it was nearly certain that Doe’s son was the infringer, making it likely that Strike 3 would pursue other infringement claims against Doe in the future.”

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