CAMDEN, N.J and PHILADELPHIA — Judges in two recent cases involving Strike 3 Holdings have questioned the need for defendants accused of infringing on the copyright of adult titles to be identified by a pseudonym and not by their legal names.
The two decisions concerning Strike 3, the copyright holder for the Vixen Media Group brands, were highlighted today by the influential law blog The Volokh Conspiracy, published by UCLA law professor Eugene Volokh through the Reason magazine website.
While the judges' opinions, issued in June regarding separate cases in New Jersey and Pennsylvania, questioned the need for pseudonymity of defendants in cases involving adult content, Volokh noted that “as in so many other contexts in which pseudonymity is sought, the cases are badly split” depending on the courts where they are heard.
New Jersey Judge Joel Hillman wrote that “while litigants have an interest in privacy, the public also has a right to obtain information about judicial proceedings” and that the party seeking to seal any part of a judicial record therefore “bears a heavy burden of showing that disclosure of the record will ‘work a clearly defined and serious injury to the party seeking closure.’”
Judge Hillman added that “this court does not have the authority to act as a gatekeeper barring otherwise valid copyright owners access to the courts simply because of the distasteful content of their intellectual property or how it was acquired. Such policy matters on the breadth of copyright protection should be left to the legislative branch in a manner consistent with the Constitutional directive to provide a limited monopoly to the creative industries of society.”
As for the parties' joint application to seal the record, Judge Hillman noted that “if this court were to seal the materials identifying the defendant now upon a joint application of the parties, after the services of this court were used to identify a potential infringer and a settlement reached, it would not be unreasonable for someone to have the impression that some form of extortion is indeed part of the game here and even worse that the court harbors and facilitates it.”
Pennsylvania Judge: Public Access Trumps Privacy
Pennsylvania Judge Gerald Pappert similarly denied a motion to seal the record, noting that after the case he was presiding over “has purportedly settled, Strike 3 now moves on the Defendant's behalf to maintain the pseudonym in the case caption and permanently seal the unredacted documents containing his name, address and other identifying information.”
Although the defendant contended that he might lose his job and/or future employment opportunities because of the allegations in this case, and that his “reputation would be tarnished irreparably” if he were associated with “the alleged copyright infringement of adult content,” the judge ruled that “broad, vague and conclusory allegations of harm” are “insufficient to overcome the presumption of public access.”
Legal World Fascinated by Strike 3 Strategy
As XBIZ reported, Strike 3 was recently featured by leading legal analysis news site Law360 in a profile highlighting the success of the company's IP strategy. Strike 3 has for years been the subject of much fascination in the legal world for not backing down from its lawsuit-heavy strategy, even after previous practitioners have been rebuked by judges.
Strike 3 and its main legal enforcer, attorney Lincoln Bandlaw, have never relented in the practice of pursuing lawsuits against individual content pirates and anonymous file-sharers, even when occasionally sharply criticized by some judges for the legal strategy of subpoenaing ISPs for customer information.
A top legal analytics firm released a report in June confirming that just two adult companies — Strike 3 Media and Malibu Holdings — were responsible for the bulk of all copyright litigation in federal courts between 2018 and 2020.
