The porn-watching John Doe at IP address 73.180.154.14 owes U.S. District Senior Judge Royce Lamberth a big—and I mean huge—thank-you.

In fact, every copyright-infringing freeloader who watches pirated porn should send the 75-year-old Washington, D.C.-based jurist a fruit basket, or at least a nice note.

Because in a blistering sua sponte opinion, Lamberth on Friday destroyed an attempt by a litigious pornographic filmmaker—represented by Am Law 100 firm Fox Rothschild—to unmask the identity of Mr. IP Address 73.180.154.14.

And it is glorious.

Lamberth kicks off the 9-page opinion by introducing us to the plaintiff, Strike 3 Holdings. The judge quotes a newspaper article that describes the company as “The Steven Spielberg of Porn,” for its award-winning X-rated flicks, so hey, good for them.

“Strike 3 is also a copyright troll,” Lamberth wrote. “Its swarms of lawyers hound people who allegedly watch their content through Bittorrent, an online service enabling anonymous users to share videos despite their copyright protection.”

Strike 3 and its lawyers at Fox Rothschild take umbrage at the “copyright troll” label, according to my colleague Roy Strom, who previously wrote about the company and its litigation strategy. They insist Strike 3 is not actually a troll “because it produces actual content and does not rely on litigation to make money.”

Fair enough. And pirated porn is definitely an issue—it reportedly costs the industry $2 billion a year.

But as Roy also reported, Fox Rothschild in rapid succession has brought more than 1,200 suits on Strike 3's behalf.

Fox Rothschild associate Jessica Haire, who filed the Strike 3 complaint before Lamberth, did not respond to a request for comment.

In any event, Lamberth doesn't seem to be interested in splitting semantic hairs. “The copyright troll's success rate comes not from the Copyright Act, but from the law of large numbers,” he wrote. “These serial litigants drop cases at the first sign of resistance, preying on low-hanging fruit and staying one step ahead of any coordinated defense. They don't seem to care about whether the defendant actually did the infringing, or about developing the law.”

And Judge Lamberth has had it UP TO HERE.  

“If a Billy Goat Gruff moves to confront a copyright troll in court, the troll cuts and runs back under its bridge,” he wrote. “Perhaps the trolls fear a court disrupting their rinse-wash-and-repeat approach: file a deluge of complaints, ask the court to compel disclosure of the account holders; settle as many claims as possible; abandon the rest.”

But as of now, he is refusing to play along.

Strike 3 asked the court for early discovery, filing an ex parte motion to subpoena the John Doe's internet service provider to uncover the porn-watching defendant's identity.

Nope. That's not happening on Lamberth's watch.

“Armed with hundreds of cut-and-pasted complaints and boilerplate discovery motions, Strike 3 floods this courthouse (and others around the country) with lawsuits smacking of extortion,” he wrote. “It treats this court not as a citadel of justice, but as an ATM. Its feigned desire for legal process masks what it really seeks: for the court to oversee a high-tech shakedown. This court declines.”

Whoa. “Not as a citadel of justice, but as an ATM.” That's a line to hold on to.

Lamberth takes a (ahem) hardcore stand for privacy. He notes that there's no directly on-point D.C. Circuit precedent, because Strike 3 and other litigious porn makers like Malibu Media abandon their contested cases before they ever get that far.

So Lamberth took it upon himself to call it like he sees it.

The problem, he found, is that once the court greenlights a request to unmask the IP address holder's identity and serve the person as a defendant, “any future Google search of their name will turn up associations with websites Vixen, Blacked, Tushy and Blacked Raw. The first two are awkward enough, but latter two cater to even more singular tastes.”

But just because the Verizon or Comcast or Cox or AT&T bill is in someone's name, that doesn't mean he or she is the one who actually watched the pirated porn.

Lambert rattles off the ways a person could be falsely accused: IP addresses can be spoofed by virtual private networks or so-called onion routing. A person's router could be unsecured.  Malware could crack a password and open a back door. The same IP address is often used by family, roommates, guests or neighbors.

“Simply put, inferring the person who pays the cable bill illegally downloaded a specific file is even less trustworthy than inferring they watched a specific TV show,” he wrote.

“Imagine having your name and reputation publicly—and permanently—connected to websites like Tushy and Blacked Raw. (Google them at your own risk.),” Lamberth continued. “How would an improperly accused defendant's spouse react? His (or her) boss? The head of the local neighborhood watch? The risks of false accusation are real; the consequences are hard to overstate and even harder to undo.”

Yes, the judge acknowledges that “Strike 3's alleged ownership of an infringed copyright sets forth a prima facie claim. So too is the requested information necessary to advance Strike 3's claim.”

That's too bad.

“An honest copyright holder might balk at this result, misunderstanding it to slash congressionally endowed defenses against increasingly creative and covert cyberpirates,” he wrote. “But the typical case does not involve pornography, nor is this even run-of-the-mill porn.

“By extension, two factors limit today's holding,” he continued. “First is this content's aberrantly salacious nature. Second is the legion pitfalls associated with Strike 3's tracking and identification of infringers. Given these high stakes—unlikely to appear in more typical cases—the court will not accept the risk of misidentification.”

 

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