[00:00:03] Speaker 05: Case number 18-7188, Strike 3 Holdings, LLC. [00:00:07] Speaker 05: Appellant, Mr. John Doe. [00:00:09] Speaker 05: Subscriber assigned ID address 73.180.154.14. [00:00:13] Speaker 05: Mr. Banpo, the appellant. [00:00:17] Speaker 05: Mr. Lloyd, the amicus curi, in support of the District Court's order. [00:00:23] Speaker 01: Good morning, and may it please the Court. [00:00:26] Speaker 01: My name is Lincoln Bandlow, and I represent the appellant, Strike 3 Holdings LLC. [00:00:31] Speaker 01: I've reserved three minutes for rebuttal. [00:00:35] Speaker 01: With me at council table are Emily Kennedy, the general counsel of General Media Systems, the parent company of Strike 3, as well as Jessica Fernandez, senior counsel for General Media Systems. [00:00:47] Speaker 01: They were both on the briefs and are admitted here in DC. [00:00:50] Speaker 01: I'd like to spend a brief moment talking about three things, the nature of my client's business, the nature of our lawsuits, [00:00:56] Speaker 01: and the errors that were made by the district court in denying us a fundamental step towards the process of enforcing our copyrights. [00:01:03] Speaker 01: First, my client is a motion picture production company. [00:01:07] Speaker 01: It produces, it writes, produces, directs, edits, et cetera. [00:01:10] Speaker 01: It's in the business of licensing and selling its adult films that it produces. [00:01:17] Speaker 01: These are very popular films. [00:01:18] Speaker 01: We have a large subscriber base. [00:01:20] Speaker 01: But unfortunately, that popularity is also evidenced by the fact there are a lot of people who'd rather steal the films than pay for them. [00:01:27] Speaker 01: So they use the BitTorrent protocol to do so. [00:01:30] Speaker 01: And they do so at an astronomical rate. [00:01:33] Speaker 01: Our investigators tell us that there are over 400,000 unique infringers of our content each month. [00:01:40] Speaker 01: And so we, like many other content creators, mainstream films, book publishers, record companies, et cetera, software creators, we have decided that it's important to protect our rights and do so through pursuing these online infringers with litigation. [00:01:56] Speaker 01: This litigation, though, is different than most litigations. [00:01:58] Speaker 01: Most litigations, you know exactly who your defendant is. [00:02:01] Speaker 01: There may be a little dispute over liability, but your picture's posted to a website. [00:02:05] Speaker 01: You know who did it. [00:02:06] Speaker 01: You can go right after them. [00:02:07] Speaker 01: But because of how the internet works, these people are anonymous, at least temporarily. [00:02:12] Speaker 01: But Congress has specifically addressed the issue of whether they can always remain anonymous and has said very clearly under circumstances in which a party shows good cause, you can obtain a court order requiring an ISP to provide you the name and address of who is that person behind that anonymous number. [00:02:31] Speaker 02: You don't dispute the good causes of the test that you think should apply to get this, which you all call early discovery? [00:02:39] Speaker 01: Absolutely, and we don't dispute, in fact, the district court did not dispute that the proper test is the Arista case. [00:02:46] Speaker 01: And so using that test, we need to seek court intervention to get the information to proceed further in our cases by giving us that order. [00:02:56] Speaker 01: But what we do before we bring any case is we do a substantial investigation that reveals three important things for this court. [00:03:04] Speaker 01: First, we don't go after everybody of those 400,000. [00:03:08] Speaker 01: We only go after the very serial significant infringers. [00:03:12] Speaker 01: So our investigators first uncover someone who is infringing a lot of our works. [00:03:17] Speaker 01: Not one, one day. [00:03:18] Speaker 01: But in this case, 22. [00:03:20] Speaker 01: In this case, it's actually relatively a low one. [00:03:23] Speaker 01: 50, 100, 200 of our films. [00:03:26] Speaker 01: And we also uncover evidence that they're doing it over an extended period of time, three, five, six months, a long period of time. [00:03:33] Speaker 01: And the third thing we have before we file a lawsuit is we have that number so we can tie it to a database that talks about their entire BitTorrent history. [00:03:42] Speaker 01: Every motion picture, video game, book, song recording that they're using BitTorrent to infringe, we're aware of. [00:03:49] Speaker 01: So what we have is a massive serial infringer. [00:03:52] Speaker 06: So Counselor, you agree that the standard here is abuse of discretion? [00:03:56] Speaker 06: It is abuse of discretion, certainly, but... So how do we get past that, the deferential standard of review? [00:04:03] Speaker 01: There were three ways that discretion was abused. [00:04:06] Speaker 01: First of all, the court, although recognizing that the Arista test is the appropriate test, a very persuasive one, as the court said... That test hasn't been adopted by this circuit. [00:04:17] Speaker 01: I'm sorry, excuse me. [00:04:18] Speaker 06: The Arista standard is a second circuit case. [00:04:21] Speaker 01: That's correct, but every district court in this district that has looked at these motions has applied the Arista test or otherwise seen the factors in Arista indicate the kind of good cause factors that you should look at. [00:04:35] Speaker 01: The court did three things that are abusive discretion. [00:04:38] Speaker 01: First, [00:04:39] Speaker 01: It substantially revised certain aspects of the Arista test to make it such that it would be impossible for us to obtain the very important, necessary information, information the court deemed itself to be necessary to proceed with our cases. [00:04:55] Speaker 01: The second error in the use of its discretion was [00:04:58] Speaker 01: It didn't say everybody would have that impossibility. [00:05:01] Speaker 01: It said only us because we're producers of adult content. [00:05:05] Speaker 01: It said other producers of mainstream content or what have you would somehow be able to meet this test, even though we somehow could not meet the test. [00:05:14] Speaker 01: And it did so on the basis, which is an abuse of discretion, of discriminating against us based on our content. [00:05:21] Speaker 01: It basically pretty very clearly said, I'm not giving you this relief you request because of the content of your speech. [00:05:28] Speaker 01: The third error that's abuse of discretion and a clear one I think under this court's precedent was conducting an extrajudicial investigation. [00:05:36] Speaker 01: We put before the court very specific facts, things like our policy in these cases, specific declarations that we don't want to proceed against innocent people. [00:05:46] Speaker 01: We try very carefully to get all the evidence we can to make sure we're not doing that. [00:05:49] Speaker 01: And despite the fact that those were the undisputed facts before the record, the court went out and did its own investigation, looked at a highly disputed prejudicial law review article, looked at some old article about a lawsuit against a grandmother somewhere done years ago before we ever got into this litigation, and other bits of information to make several [00:06:10] Speaker 01: conclusions about what we supposedly do in this litigation, that there was no evidence to support. [00:06:16] Speaker 01: And it admitted, it said things like Google at your own risk, meaning he went out and Googled and looked at some things, we're not sure exactly what it was. [00:06:23] Speaker 02: But it's actual legal ruling here, the legal basis given for its ruling didn't factor that information. [00:06:29] Speaker 01: I'm sorry, what? [00:06:30] Speaker 02: It's actual legal ruling here, the basis for its decision did not factor in the extracurricular research. [00:06:37] Speaker 01: Well, I believe it did factor in that extracurricular research because it said that, again, a quote unquote honest copyright holder won't have to worry about this because an honest copyright holder doesn't do such things as engage in a high stakes shakedown and an extortionate plan and use the court as an ATM. [00:07:01] Speaker 01: Those were all statements that parallel what was said in that article. [00:07:04] Speaker 01: If you look at that article, you see those exact statements are made. [00:07:07] Speaker 01: There's no basis for those statements. [00:07:09] Speaker 02: I just took it as the court saying, I'm looking at page 7 of this decision, that you lack required specificity because oftentimes the person that's identified is not the one doing the infringing. [00:07:23] Speaker 02: That was its rationale. [00:07:25] Speaker 02: And that you have a higher, in talking about the nature of the videos here, that was the basis for it. [00:07:34] Speaker 02: some of the language but the nature of these videos the district court found would trigger maybe a privacy interest that might be different from copyright cases that don't involve pornographic materials. [00:07:48] Speaker 02: And so you have the risk of misidentification and the heightened privacy interest and that seemed to be what the district court was balancing which I think is distinct from and I credit your point about [00:08:02] Speaker 02: some of the things that District Court was saying, but we're here reviewing not opinions, but hold-ins. [00:08:08] Speaker 01: Sure. [00:08:09] Speaker 01: So I think there's three things here I want to address all of them. [00:08:12] Speaker 01: First, his look at the quote-unquote specificity requirement. [00:08:17] Speaker 01: He turned that into something that it's not. [00:08:19] Speaker 01: The specificity requirement is just simply, have you been specific as to the exact thing you're asking for? [00:08:23] Speaker 01: And we, in this case, can't be more specific. [00:08:26] Speaker 01: We asked for the name of a person on a particular date, [00:08:29] Speaker 01: time, hour, minute, and second. [00:08:32] Speaker 01: So we're very specific about what we've asked for. [00:08:34] Speaker 01: He translated that into a requirement that we sort of prove our prima facie case right now as we ask for the discovery, which is, as other courts have said, is sort of circular. [00:08:45] Speaker 01: we have to get this discovery to proceed further. [00:08:48] Speaker 01: And he's saying, no, you should know exactly who it is before you can proceed further. [00:08:51] Speaker 01: And we simply can't do that. [00:08:53] Speaker 01: And every single BitTorrent case that you would look at, every single party has always agreed there's no other way you can get this information than using this process. [00:09:01] Speaker 01: And there's no otherwise way we can figure out who the exact person is. [00:09:05] Speaker 01: So that was the one error, was turning that into that problem. [00:09:08] Speaker 01: Yes, you are. [00:09:09] Speaker 02: No, no, please go ahead. [00:09:09] Speaker 01: And then the second thing that you said was the risk of misidentification. [00:09:15] Speaker 01: That's really not the standard, and not the standard that any court has applied. [00:09:19] Speaker 01: And there have been 17 district court judges here in DC that have not applied that standard. [00:09:23] Speaker 01: And there's been 325 judges across the country that have not applied that standard in these cases. [00:09:28] Speaker 01: Because what that requires is that you prove that there's no possible other alternative to your theory of liability. [00:09:35] Speaker 01: And that just simply turns ickball twangly on its head. [00:09:38] Speaker 01: That's not what we're required to do. [00:09:40] Speaker 01: Yes, there's a possibility it is not the exact subscriber, but that's not the test. [00:09:45] Speaker 01: The test is, is it plausible that it's the subscriber? [00:09:48] Speaker 02: What if it comes back from, here it was Comcast or Verizon or whomever, that the IP subscriber is a library? [00:10:00] Speaker 02: What happens then? [00:10:00] Speaker 02: Do you still claim to have a plausible inference that the library or the chief librarian is the one that did it? [00:10:09] Speaker 01: So that very rarely happens since it does happen in our cases where it's a Starbucks or it's a library or things of that nature. [00:10:17] Speaker 01: At that point, we would not be able to proceed under cobbler and say, oh, whoever administers that at the library must be responsible. [00:10:27] Speaker 01: We would have to then take that information [00:10:29] Speaker 01: and provide something more to the court to amend and proceed further. [00:10:34] Speaker 01: In that circumstance, we would realize probably going to be very difficult to figure out who of the countless people walking through Starbucks or the library did this. [00:10:42] Speaker 01: We would immediately dismiss. [00:10:43] Speaker 01: That case would be over. [00:10:44] Speaker 01: It's one of the reasons why a lot of these cases, some of them not a lot for this reason, but they winnow down from the process of getting the name to the process of resolution of the case. [00:10:53] Speaker 01: One of those reasons is that. [00:10:54] Speaker 02: Well, the amicus found a quote from [00:10:59] Speaker 02: I don't know if it was you personally, but for your client in a District of New Jersey case in which the quote was that it is often that the subscriber to the IP address is not the one who's suspected of infringing because there's libraries, Starbucks, or parents, or people in a house that don't have a secured password and the whole neighborhood can be using it. [00:11:23] Speaker 02: And so what do we do with that word often? [00:11:27] Speaker 02: It's not. [00:11:28] Speaker 02: the subscriber who is the one that you suspect of infringing. [00:11:32] Speaker 01: I have to look back. [00:11:32] Speaker 01: I was at that hearing along with my clients here testified at that hearing to see if we use that word. [00:11:38] Speaker 01: But now we know. [00:11:39] Speaker 02: I can read it to you. [00:11:40] Speaker 02: There are often going to be circumstances in which mom is a subscriber on it but it's dad or adult son or something of that nature that's actually doing the infringing. [00:11:48] Speaker 02: Obviously it's the word often. [00:11:50] Speaker 01: It's a poor choice of words because what we have found in our litigations is because we have done a substantial number over these years. [00:11:55] Speaker 01: When we amend our complaints and proceed further after we've gotten the name, our data shows that approximately 75% of the time we end up proceeding against the subscriber. [00:12:06] Speaker 01: And the other 25%, it was somebody in the house. [00:12:10] Speaker 01: So it really actually isn't often in the extensive, it's the majority of the time. [00:12:14] Speaker 01: It's seldom. [00:12:16] Speaker 01: 75% of the time, we were right. [00:12:18] Speaker 01: It was the subscriber. [00:12:19] Speaker 01: And again, that's what I talked about at the beginning. [00:12:21] Speaker 01: What we have is someone that's infringing a lot of works over a long period of time. [00:12:25] Speaker 01: So it becomes more plausible. [00:12:27] Speaker 01: It's already plausible, but it becomes more plausible that it is the subscriber, because it's someone with really consistent, repeated access to the account, which is more likely the subscriber. [00:12:35] Speaker 01: But we recognize. [00:12:36] Speaker 01: that it may be somebody else, particularly somebody else in the house. [00:12:40] Speaker 01: And that's why we need that information. [00:12:42] Speaker 01: We don't, maybe there's a misconception that we get that name and address and we just immediately slap it onto amended complaint and off we're running. [00:12:49] Speaker 01: We don't. [00:12:50] Speaker 01: We take that information and conduct a substantial further investigation to make sure that that information helps us tie it to either the subscriber or [00:12:58] Speaker 01: On occasion, get away from that often word, on occasion we find out, oh no, it's the 25 year old son that lives at home. [00:13:05] Speaker 01: It's pretty clear from the information we can glean from readily available public sources. [00:13:10] Speaker 01: We have cases where we get the name and address and we can look and we found somebody who's tweeted, love your content, do more works with these particular talent, et cetera. [00:13:19] Speaker 01: It's clearly that they are somebody that likes our works and there's reason to believe they're the ones that have a print. [00:13:26] Speaker 01: So we do a substantial further investigation and we obviously can't. [00:13:30] Speaker 01: We can't serve the claim, we can't do that investigation unless we at least get this very simple basic information. [00:13:34] Speaker 02: Are you able when you, I just don't have any idea, to first ask the internet service provider if the account is, [00:13:47] Speaker 02: a private sort of individual account or a business or some sort of large group, Starbucks, something, library, something like that? [00:13:57] Speaker 02: Is that possible for them to answer in the first instance or not? [00:14:00] Speaker 02: I think theoretically they could. [00:14:01] Speaker 02: Why wouldn't that be a better first cut? [00:14:03] Speaker 02: So then you're immediately going to knock out the Starbucks, the apartment-wide provision of service, the libraries, [00:14:13] Speaker 01: Because we're going to immediately do that anyway. [00:14:15] Speaker 01: We are going to immediately do that. [00:14:17] Speaker 01: If we get back at Starbucks, it's a local B&B, it's a library, we're already going to immediately do that. [00:14:22] Speaker 01: That case is going to get dismissed. [00:14:24] Speaker 01: Again, it doesn't mean there isn't an infringer somewhere. [00:14:26] Speaker 01: It means our infringement is going to just be unremedied. [00:14:30] Speaker 01: For example, if it's a Starbucks, again, that amount of infringement over a long period of time from the same number [00:14:36] Speaker 01: It probably isn't someone wandering in and having a latte and some infringement. [00:14:39] Speaker 01: It's probably a barista in the back room using the Wi-Fi. [00:14:43] Speaker 01: But that's okay. [00:14:44] Speaker 01: That's very difficult to prove, time consuming, burdensome on the courts. [00:14:47] Speaker 01: That gets dismissed right away. [00:14:49] Speaker 01: But certainly, yeah, I guess you could have a court order that says, tell us first if it's a business, and if not, we'll go from there. [00:14:54] Speaker 01: But technically, that's going to save a nanosecond of time. [00:14:58] Speaker 01: We see it's a business, case is done. [00:15:00] Speaker 01: Now I want to go back to your point about the privacy balancing that he did. [00:15:05] Speaker 01: His privacy analysis was based really on one case, this circuit's medical records case. [00:15:11] Speaker 01: And you really can't find a case that's more off point than that one because it was a very different thing that was being balanced there. [00:15:17] Speaker 01: In that case, there was a subpoena to get a mentally retarded man's entire file in connection with a lawsuit for assault against him by other mentally retarded men at the hospital. [00:15:28] Speaker 01: They asked for his entire file. [00:15:30] Speaker 01: And the court said, wait a minute, that's going to include his notes and his conversations with his therapist. [00:15:36] Speaker 01: That's absolutely privileged. [00:15:38] Speaker 01: When you balance absolute privilege, that's it. [00:15:40] Speaker 01: That's the end of the balancing. [00:15:41] Speaker 01: You don't get that information. [00:15:42] Speaker 01: That's the nature of absolute privilege is you don't do balancing. [00:15:45] Speaker 01: You say that's attorney-client, that's doctor-patient, we're done. [00:15:48] Speaker 01: We don't have that here. [00:15:49] Speaker 01: First of all, we have a somewhat weaker privacy interest here. [00:15:53] Speaker 01: Although we acknowledge it, we always agree to protective orders. [00:15:56] Speaker 01: We want protective orders for ourselves to protect us, which I can talk about. [00:16:01] Speaker 01: But in particular, we don't ever dispute it. [00:16:02] Speaker 01: We always ask for it. [00:16:03] Speaker 01: They're always granted. [00:16:04] Speaker 01: But more importantly than that, we don't know in every case somebody has a privacy interest. [00:16:08] Speaker 01: They may have no problem with the world knowing whatever content it is they enjoy. [00:16:12] Speaker 01: So we don't know in every case. [00:16:14] Speaker 01: Second of all, there is a lessened privacy interest in theft. [00:16:18] Speaker 01: I recognize that what you and I, when we go home and decide to watch, it should be something private that we get to keep to ourselves. [00:16:24] Speaker 01: But we don't get to go steal things and keep it private. [00:16:27] Speaker 01: And Congress has said so. [00:16:28] Speaker 01: That's why they've given us this right under the Cable Communications Act to subpoena ISP. [00:16:33] Speaker 01: If we find that there's theft, there's an lessened expectation of privacy because every single ISP gives you terms of use. [00:16:41] Speaker 01: And what does it say? [00:16:42] Speaker 01: If you use our service to steal stuff, we're going to have to reveal you, maybe, in a court process. [00:16:47] Speaker 01: So you know, going into engaging in bid-torn activity, that your activity may be revealed. [00:16:52] Speaker 04: Yeah, but do those contracts say that if someone else uses your ISP, we're going to reveal your name? [00:17:01] Speaker 04: I think it just says... You're leaping the step. [00:17:04] Speaker 04: The privacy interest is, or the concern is, that you may offend someone who has the address but is not the infringer. [00:17:14] Speaker 01: A hundred percent agree. [00:17:15] Speaker 04: Your argument now isn't making any sense because you're avoiding that issue. [00:17:19] Speaker 04: That's the issue. [00:17:20] Speaker 01: Well, that's assuming that we've got the wrong person, which is an assumption, and assuming that's correct. [00:17:27] Speaker 01: That's why we're perfectly fine with protective orders in every single one of these cases. [00:17:31] Speaker 01: Before there's even a defendant involved, we suggest a protective order. [00:17:35] Speaker 03: We do it because we recognize general... [00:17:41] Speaker 01: The details typically at the protective orders that get entered around the country are A, the defendant can remain anonymous throughout the litigation. [00:17:49] Speaker 01: B, we can only use the information we obtain to further prosecute our actions. [00:17:53] Speaker 01: We can't use it for any other purpose. [00:17:55] Speaker 01: C, it's to remain confidential with us, which we always agree to. [00:18:00] Speaker 01: And those are the basic provisions of a confidentiality order. [00:18:03] Speaker 01: So we don't release names. [00:18:06] Speaker 01: Names aren't out there. [00:18:07] Speaker 01: There's a statement in the opinion about how, oh, you'll Google someone and you'll immediately associate them with these lawsuits and this content. [00:18:13] Speaker 01: No, you can't do that right now because that won't happen. [00:18:17] Speaker 01: So we're that balancing. [00:18:20] Speaker 01: You've got on the one hand the heaviest weight you can. [00:18:22] Speaker 01: Without this, we're done. [00:18:24] Speaker 01: Without this, we literally cannot enforce our copyrights. [00:18:27] Speaker 01: That's one end of the balance. [00:18:28] Speaker 01: The other balance is maybe this could be embarrassing to someone, but you can address it. [00:18:32] Speaker 01: Give them a protective order. [00:18:33] Speaker 01: That problem is solved. [00:18:35] Speaker 02: Again, I agree with Judge Edwards. [00:18:36] Speaker 02: I think you're watering down the whole reason, even Arista. [00:18:41] Speaker 02: developed its test is that there are First Amendment concerns here and then you opened by describing your research that you do before you do this and it shows you look over a period of time not just at your images but what else are they looking at. [00:18:56] Speaker 02: And so you've got a 3, 12 month record of what someone at ISP Address has watched. [00:19:04] Speaker 02: And now we're going to use court processes to expose that. [00:19:08] Speaker 02: And so that seems to me, and you say theft, but as you said, whether often or not, there's a material percentage here where the person's not going to be the one who's done anything wrong. [00:19:21] Speaker 02: And so we'll have full-throated First Amendment protection against analysis in a courtroom of the things they watched in the privacy of their home. [00:19:32] Speaker 01: Well, bear in mind, if they were the person that didn't do it, we're not revealing anything that they watched or downloaded because they didn't do it. [00:19:40] Speaker 01: So the... You take at face value every denial? [00:19:47] Speaker 02: You take at face value every denial? [00:19:50] Speaker 02: You say, I'm not the one that did it? [00:19:53] Speaker 01: We take serious denials with an offer to provide information to support the denials very seriously, every single one. [00:20:01] Speaker 01: Now, look, it is, there are some occasions in which it seems pretty clear the defendant said to his lawyer, let's settle this. [00:20:07] Speaker 01: Tell him I didn't do it, but let's work it out. [00:20:09] Speaker 01: And that's a denial. [00:20:10] Speaker 01: But when somebody's more serious and says, I did not do this. [00:20:13] Speaker 01: In fact, I have evidence I can readily produce to you that would show it. [00:20:16] Speaker 01: Our first response is give it to me. [00:20:18] Speaker 01: And in fact, our first response is, I don't want to settle with you. [00:20:20] Speaker 01: I don't want a penny from you. [00:20:21] Speaker 01: If you didn't do this, give me the evidence, and we'll dismiss. [00:20:25] Speaker 01: We're very careful about these actions, and that's important to understand. [00:20:28] Speaker 01: There's bad actors in the past that have done all kinds of bad things in these litigations, but primarily those bad actors weren't companies. [00:20:36] Speaker 01: They were just people acquiring old works for the purposes of suing. [00:20:40] Speaker 01: We're a real company with a real reputation and a real brand. [00:20:43] Speaker 01: We don't want to be the company that sues innocent people, that hassles people, etc. [00:20:48] Speaker 01: That would be bad for our reputation as a company. [00:20:50] Speaker 05: We want to just simply enforce our rights and stop what is a massive problem for our company. [00:21:02] Speaker 01: Not always monetary. [00:21:04] Speaker 01: There's two things we really want. [00:21:05] Speaker 01: We want some compensation for the harm to us, but we want the infringement to stop. [00:21:10] Speaker 01: And the one thing we found is once that ISP notice goes out, it stops. [00:21:14] Speaker 01: So there are a lot of times where we dismiss without any sort of payment because we're happy with the fact that it stopped. [00:21:19] Speaker 01: And it's important that it stops because these are not just downloaders, they're distributors. [00:21:23] Speaker 01: They're helping this continue to be distributed on a daily basis and we really want that to be stopped. [00:21:27] Speaker 01: I see you're out of time. [00:21:28] Speaker 01: Thank you. [00:21:41] Speaker 00: May it please the court, Seth Lloyd, for court appointed amicus. [00:21:44] Speaker 00: The district court acted well within its broad discretion in denying discovery on the facts here. [00:21:49] Speaker 00: Strike three's request creates a significant risk of misidentification because strike three admits knowing only that someone allegedly used an internet address to commit copyright infringement without knowing who that someone is. [00:22:02] Speaker 00: That risk of misidentification threatens real harm to internet subscribers. [00:22:06] Speaker 00: And strike three has a pattern of pursuing discovery like this with little interest in seeking judicial resolution. [00:22:14] Speaker 04: Do you think that this report would have been similarly concerned if you were talking about infringing children's books? [00:22:20] Speaker 00: I think the balance may well have been different in that context, Judge Edwards. [00:22:24] Speaker 00: Why? [00:22:24] Speaker 00: Because of what the district court identified, that when the content is sensitive, adult content, the privacy interests are different. [00:22:32] Speaker 04: I don't think- Isn't that content discrimination? [00:22:35] Speaker 00: No, it's not. [00:22:36] Speaker 04: I don't get that. [00:22:38] Speaker 04: I mean, the dish could seem to weigh very heavily the fact that this was, in his view, a porn site which he had a little good taste for. [00:22:48] Speaker 04: And, you know, the first thing is I'm reading the cases, we'll suppose it's children's books. [00:22:54] Speaker 04: That's what you're talking about. [00:22:55] Speaker 04: Because the risk of identifying someone who is not the infringer of the children's books is the same. [00:23:03] Speaker 04: And there may be embarrassment caused to the person you've identified in the same way you're talking. [00:23:08] Speaker 04: The only addition to the equation is this is porn sites, the other is children's books. [00:23:14] Speaker 04: And if what the district court is resting on is the fact that they're foreign sites, which he has no use for, that seems to be very iffy as a basis for, and if you're readily agreeing that it's going to be different if it's children's books, [00:23:28] Speaker 04: then I'm not sure that discretion was not abused. [00:23:33] Speaker 00: It's different, but it's not different because of the content. [00:23:35] Speaker 00: It's different because of the effects that that content has on people's privacy interests. [00:23:38] Speaker 00: And that's consistent with Supreme Court precedent. [00:23:41] Speaker 04: Well, I think there are lots of people, if they're stealing children's books, who'd be mortified that someone now is accusing them of having done it. [00:23:47] Speaker 04: And they would not want that known. [00:23:50] Speaker 04: And I don't know how to weigh that against those who would be mortified if someone found out that they were looking at or using whatever these movies are. [00:23:57] Speaker 00: So it's fair for courts to consider the privacy effects including the secondary effects of the content. [00:24:03] Speaker 00: So if there may be concerns like that for children's books then that would be something a district court could balance just as the district court here could balance the fact that the adult content is sensitive and... Wouldn't it be a troubling line to have courts factor into whether you get this type of upfront early discovery subpoena [00:24:27] Speaker 02: about the worth of the content that's being infringed? [00:24:35] Speaker 00: That would be a troubling line, but that's not what happened here. [00:24:38] Speaker 02: Okay, how is that not exactly what happened here? [00:24:40] Speaker 00: The district court didn't do anything different ultimately, I don't think, from what strike three itself said. [00:24:45] Speaker 00: Strike three's filings recognize that the sensitive nature of this litigation [00:24:49] Speaker 00: has the potential to embarrass and humiliate people and to force innocent individuals to settle. [00:24:55] Speaker 00: That's what strikes three said in its filings. [00:24:57] Speaker 00: And that's, I think, the privacy interest of the District Court. [00:25:00] Speaker 02: Well, it may just be reacting to exactly this problem that courts maybe are sure of. [00:25:04] Speaker 02: I mean, it's one thing if the person on the receiving end, the ISP, but the person the ISP is identifying wants a protective order or whatever reason they articulate, courts can deal with that. [00:25:18] Speaker 02: That's a different thing, right? [00:25:20] Speaker 02: That happens all the time. [00:25:21] Speaker 02: People can explain why they need a protective order. [00:25:24] Speaker 02: And that's really coming out of their mouths. [00:25:26] Speaker 02: It's not a content-based upfront judgment like we have here, which is before I know whether one even wants a protective order or anyone's embarrassed, I'm going to look at the content of your material and decide that it's harder for you to get this discovery against infringement than say Disney for, [00:25:45] Speaker 02: I'm guessing that there's probably a theft of frozen. [00:25:50] Speaker 00: I think the district court rightly looked at the effects that this could have on subscribers just as this court did in AF Holdings. [00:25:56] Speaker 00: The court in AF Holdings recognized that the adult nature of this content combined with the high risk of statutory damages and the cost of litigation placed burdens on the absent individuals and that courts could properly consider those. [00:26:10] Speaker 00: And the Supreme Court has, so just on the First Amendment point, the Supreme Court [00:26:15] Speaker 00: has repeatedly said it's content neutral when you have a regulation, for example, that says an adult film theater cannot be located near residential areas, but non-adult film theaters can. [00:26:26] Speaker 00: And the reason the court said that that's a content-neutral regulation that can survive for some time is because what you're concerned about is the secondary effects of [00:26:37] Speaker 00: the content on those around them. [00:26:39] Speaker 06: The regulation or a statute is something very different from a single district court judge exercising their discretion, right? [00:26:45] Speaker 06: I mean, if you have a law or regulation that's been implemented through some process, that's very different from exercising your discretion over the type of content that determines a privacy interest. [00:26:58] Speaker 00: I think that's different, but at the end of the day, I don't think the law requires district courts to blind themselves to the privacy interests that are at stake. [00:27:06] Speaker 00: This court referred to the same thing and they have holdings, and that's all the district court did here. [00:27:10] Speaker 00: But again, the privacy interest is just one part of the balancing that the district court applied here. [00:27:17] Speaker 00: I don't think the district court committed an error of law in considering that, and the other factors the district court considered also weighed heavily. [00:27:23] Speaker 02: What if it was violent conduct? [00:27:24] Speaker 02: Could they do the same thing if it was videos of violent conduct? [00:27:29] Speaker 00: If the district court is concerned and there's evidence, as I think AF Holdings suggests there is, that parties are using that type of content to put pressure on unnamed subscribers to settle cases regardless of the merits of them, then that may be a factor that district courts can consider. [00:27:50] Speaker 04: Is there some evidence to indicate that that's what's going on? [00:27:53] Speaker 04: They're using this to put pressure on people who don't want to settle? [00:27:56] Speaker 04: Where is that coming from? [00:27:57] Speaker 00: That's the concern that this court identified in AF Holdings, where it faces a similar pattern of conduct. [00:28:03] Speaker 04: This is a particular case. [00:28:04] Speaker 04: Is there some evidence to support that? [00:28:08] Speaker 04: I think it's the same difference. [00:28:10] Speaker 04: Were they allowed to address the concerns that the district court raised, having looked at these newspaper articles, et cetera? [00:28:17] Speaker 04: Did they get a shot at that? [00:28:19] Speaker 04: I think... See, I mean, it's not your fault. [00:28:23] Speaker 04: I'm just asking if you're trying to make sense of what you're arguing. [00:28:27] Speaker 04: Abuse of discretion doesn't allow or doesn't embrace whimsical decision-making. [00:28:31] Speaker 04: And I'm not entirely sure what lines are being drawn here by the district court. [00:28:37] Speaker 04: I'm unhappy because why? [00:28:38] Speaker 04: Why are you unhappy? [00:28:40] Speaker 04: Is it because of the nature of the site? [00:28:42] Speaker 04: And I don't get that, quite honestly. [00:28:45] Speaker 04: And now you're suggesting it's because maybe these people use this to just go out and leverage innocent people. [00:28:55] Speaker 04: Is there something to support that? [00:28:58] Speaker 04: Other than the newspaper articles that the judge read and that were not the subject of the hearing? [00:29:04] Speaker 00: Yes, I think there is. [00:29:04] Speaker 00: At first, I think it's important to be clear. [00:29:07] Speaker 00: The district court didn't adopt any bright line rules. [00:29:09] Speaker 00: It didn't draw any [00:29:12] Speaker 00: lines in the sand. [00:29:13] Speaker 00: It did a multi-factor balancing test, which is what courts are supposed to do when they balance, when they exercise discretion in this context. [00:29:20] Speaker 00: And if you read the decision as a whole, I think what the district court was concerned about, for one, the district court started by calling strike three's content award-winning and critically acclaimed. [00:29:30] Speaker 00: I think the district court had a balanced view of what was happening here. [00:29:34] Speaker 00: but found concerns. [00:29:34] Speaker 00: Those concerns aren't just the nature of the content. [00:29:37] Speaker 00: It's the pattern and practice of filing thousands of these suits, 1,849 suits, in a 13-month span and not being able to point to a single one that proceeded not even just to a trial but to a judicial resolution. [00:29:49] Speaker 00: And in this court, when strike three had the opportunity to show that it is seeking discovery here to pursue cases in court, what did it point to? [00:29:57] Speaker 00: It pointed to the case we submitted a couple weeks ago from the Western District of Washington where when a John Doe defendant [00:30:04] Speaker 00: filed counterclaims, strike three promptly dismissed its own claims and tried to prevent the district court from deciding the case. [00:30:10] Speaker 00: I think that shows a pattern in the district court who has 30 years of experience overseeing litigation could at least reasonably infer that there's a pattern here of filing these cases to get the discovery and pursue settlements but preventing courts, actively preventing courts from reaching the merits that there is no... Go ahead. [00:30:27] Speaker 02: How does the legal test that the district court adopted here [00:30:31] Speaker 02: which focuses on the salacious mix, an expressed factor of the salacious nature of the material. [00:30:38] Speaker 02: How does it protect against the concerns you were raising about filing lots of lawsuits and dismissing them? [00:30:45] Speaker 00: I think the district court simply considered a variety of factors in determining whether to exercise its discretion. [00:30:51] Speaker 00: The privacy interest of the absent subscriber was one of those factors. [00:30:55] Speaker 00: I think the pattern in practice of litigation conduct is another because it shows [00:31:00] Speaker 00: the question that this court asked and looked at in AF Holdings. [00:31:04] Speaker 00: Is the party seeking discovery to pursue litigation in court? [00:31:10] Speaker 00: Are they exercising or asking for the help of the court to actually do what discovery is for or are they doing it for another reason? [00:31:16] Speaker 02: So this is sort of a strange position procedurally. [00:31:22] Speaker 02: We're at the complaint stage but it's almost like the [00:31:26] Speaker 02: because it hasn't even been served yet and we don't even know the defendant on the receiving end of the complaint. [00:31:34] Speaker 02: And normally we would expect district courts to construe the complaint in favor of the plaintiff and make all reasonable inferences in their favor before doing what the district court recognized here which is denying them the discovery which means dismissing your case. [00:31:53] Speaker 02: The two go hand in hand here. [00:31:57] Speaker 02: On the other hand, it is an unusual time, you know, that you're authorizing a form of discovery, ex parte, there's no defendant here. [00:32:05] Speaker 02: And so there's genuine concerns. [00:32:08] Speaker 02: But it seems to me, how far can district courts go in finding their own facts about what's going on and not taking, confining themselves to the complaint in this context? [00:32:21] Speaker 02: Is there a goal for that that you can, you identify in the decision? [00:32:25] Speaker 00: So I don't read the decision here as finding any facts that weren't either already, that weren't part of the allegations in the complaint, part of the motion, or aren't sort of readily discoverable facts from PACER filings, right? [00:32:38] Speaker 00: So the district court's looking at strike three's pattern of litigation conduct. [00:32:41] Speaker 00: I think those are the only facts that influence the district court's decision, and I think that those are proper things to consider. [00:32:46] Speaker 02: Well, I think the problem is a difficult, as I read it, the district court did more than simply say, [00:32:50] Speaker 02: We filed lots of cases because there's lots of infringement. [00:32:53] Speaker 02: That would be the reasonable inference from that. [00:32:56] Speaker 02: And then saying the cases ended. [00:32:59] Speaker 02: But I thought the district court was going further, particularly with the copyright troll label saying that they ended because, and here's the facts, they don't want to litigate. [00:33:10] Speaker 02: They cut and run. [00:33:11] Speaker 02: They are sort of abusing the process. [00:33:15] Speaker 02: Those seem to me like additional fact findings that are anything but judicially noticeable from PACER. [00:33:20] Speaker 00: I think those are inferences that the district court from the undisputed facts about strike three's pattern of litigation conduct across 1,849 cases. [00:33:29] Speaker 02: I think the district court can... That's my question. [00:33:31] Speaker 02: Normally we take reasonable inferences at this stage in favor of the plaintiff, not against the plaintiff. [00:33:37] Speaker 02: Are you telling me the only inference that can be drawn from lots of filings and then cases that settle or some that are dropped, the only inference that can be drawn is that it's abusive litigation? [00:33:49] Speaker 00: I don't think the court has to conclude that that's the only reasonable inference. [00:33:57] Speaker 02: I think we have to credit it, don't we, because otherwise we have to take the reason. [00:34:02] Speaker 02: If there's a reasonable inference that goes in other direction, don't we not have to take that at this stage in favor? [00:34:07] Speaker 00: No, I don't think so, and I think AF Holdings shows that that's not the case. [00:34:11] Speaker 00: In AF Holdings, again, there is a similar pattern of litigation practice, filing hundreds of suits, [00:34:16] Speaker 00: getting discovery, getting the name, and then promptly dismissing the suits. [00:34:20] Speaker 00: And this court drew the inference that the pattern of practice there was that you're seeking this discovery for reasons unrelated to pursuing your claims in court. [00:34:30] Speaker 00: And courts are not compelled to lend their imprimatur to that type of practice. [00:34:37] Speaker 00: And I think it's important to realize, or remember, what strike three is seeking here is the Brightline rule, that any time [00:34:45] Speaker 00: copyright owner files this form complaint with this form motion, district courts have to grant this discovery, and not granting it would be an abuse of discretion. [00:34:53] Speaker 00: That's not the type of discretionary practice that the rules contemplate, and that's contrary to what Congress expected, right? [00:35:00] Speaker 00: The reason it straight through suggests there's like a technological problem that prevents it from getting the subscriber's name, it's not, right? [00:35:06] Speaker 00: The internet provider knows who this person is, but Congress wanted that information protected and wanted courts to act [00:35:13] Speaker 00: as a check against abuses and that's what the district court did. [00:35:16] Speaker 00: It weighed the factors. [00:35:17] Speaker 00: It applied a multi-factor balancing and exercise appropriate discretion. [00:35:22] Speaker 02: So what more are they supposed to show? [00:35:24] Speaker 02: I mean, so under this theory, the district court's approach, I don't know how any of these actions will ever go forward. [00:35:31] Speaker 02: So it seems, although it had more words and factors, it seems like at the end of the day it's also, it's another bright line test going the other direction. [00:35:43] Speaker 02: could they show without first identifying the plaintiff that would meet the, I mean the clobber test was not at this stage. [00:35:50] Speaker 02: It actually had given them the subpoena. [00:35:52] Speaker 02: It was at the 12-B6 stage. [00:35:54] Speaker 02: But what more would they be able to show or should they show to get the subpoena? [00:36:01] Speaker 00: I think they should show that they're seeking the discovery because they actually intend to pursue claims on the merits, including if defendants fight back. [00:36:09] Speaker 02: Well, wouldn't it be a little troubling if, based on the content of their movies, we said you have to commit to litigating further in court than we require of other parties? [00:36:22] Speaker 00: No, but I think the interference when there are 1,849 cases and you can't point to a single one, I think it may in fact be [00:36:31] Speaker 02: sort of unreasonable to infer, I think, that every single one of those parties either settle or... Except if you accept the district court's view about privacy concerns, then people might very well be willing to settle. [00:36:44] Speaker 02: And they've got, you know, they do have, once they find the name that goes with the IP address, unless that person can say, I didn't do it, then they've got the evidence already of the infringement. [00:36:56] Speaker 02: And so, it may well be there's not much [00:36:59] Speaker 02: I mean, that's the thing where I have no idea why these things are ending. [00:37:03] Speaker 02: It could be for a whole variety of reasons. [00:37:05] Speaker 02: It could be Starbucks, libraries. [00:37:08] Speaker 02: It could be you've got me and I don't want to. [00:37:12] Speaker 02: How do we know from this record without the district court's surmise that it was their decision to stop as opposed to the defendants? [00:37:21] Speaker 00: Well, I think we're not in complete darkness here. [00:37:24] Speaker 00: I think the case we submitted a couple of weeks ago from the Western District of Washington shows [00:37:28] Speaker 00: In fact, that when people fight back, strike three does cut. [00:37:31] Speaker 02: No, it shows us in one case. [00:37:32] Speaker 02: That's what happened. [00:37:34] Speaker 00: But strike three out of thousands of cases can't point to a contrary thing. [00:37:40] Speaker 02: But you can't tell me, I'm sorry, have we looked at the 1,848 cases and found that in every one of those someone pushed back and they cut and ran? [00:37:48] Speaker 02: Or do we know that, I assume you're not going to represent, [00:37:52] Speaker 02: We're grateful to your work for the court as amicus, but I assume you haven't looked at all 1,849 cases to figure out whether maybe, you know, defendants wanted to settle, to the extent you can tell any of that from PACER anyhow. [00:38:04] Speaker 00: No, I haven't looked at the 1,000 cases, but strike two was involved in those 1,000 cases, and when it had the opportunity in this court to point to cases where [00:38:13] Speaker 00: defendants have fought back and it continued, instead it pointed to footnote seven, the case it points to as showing a different pattern is the case where it cut and run. [00:38:22] Speaker 02: So does that mean that just defendants aren't fighting back or does that mean that they cut and run? [00:38:26] Speaker 02: Which does that mean? [00:38:28] Speaker 00: I think the district court, again, this is I think exactly the type of thing that district courts are well qualified to weigh because they see... At this stage? [00:38:37] Speaker 00: Yes, in terms of a pattern or practice. [00:38:40] Speaker 00: of litigation and why parties are seeking discovery. [00:38:42] Speaker 00: These courts aren't lying. [00:38:43] Speaker 06: Well, you can imagine, I mean, just the nature of this. [00:38:45] Speaker 06: I mean, you know, there's widespread infringement, but each individual claim may not be that important to the plaintiffs, right? [00:38:51] Speaker 06: So they pursue what they can and they let go of the others. [00:38:54] Speaker 06: Why isn't that a plausible explanation of the many lawsuits? [00:38:58] Speaker 00: Because we don't invoke the machinery of courts unless your purpose is to use that machinery for it, to pursue things in court. [00:39:06] Speaker 06: Well, lots of private parties start lawsuits and then, [00:39:10] Speaker 06: I mean, I don't know what percentage of cases settle, but I assume it's a large percentage in all cases. [00:39:16] Speaker 00: That's right, but we typically require private parties to have a plausible claim before they get into court, and Strike 3 is accepting that. [00:39:24] Speaker 02: So that's a different argument, that they don't have a plausible claim? [00:39:27] Speaker 00: I think it's simply one of the factors is that they have a very weak case at this point. [00:39:32] Speaker 00: The most they can say is that somebody used an internet address. [00:39:35] Speaker 00: They want to get into court. [00:39:36] Speaker 00: They want to get discovered to get the name. [00:39:38] Speaker 00: And then the name may not well not be enough. [00:39:40] Speaker 06: They know that somebody is infringing because they know that people are illegally downloading. [00:39:45] Speaker 06: So they know there's been an infringement of their copyright. [00:39:49] Speaker 06: They don't know who did it, but they know that such an infringement has occurred. [00:39:53] Speaker 06: speculative. [00:39:55] Speaker 06: They know somebody is misusing the copyright. [00:39:59] Speaker 00: That's right, but that, under Twombly and Iqbal, that doesn't usually open the court doors to discovery, right? [00:40:04] Speaker 00: Under Twombly and Iqbal, you have to have a plausible claim against the defendant that you're suing in court, right? [00:40:12] Speaker 00: And we understand, and the district court understood, that they can't get the name and they can't kind of get further along without going to court and getting a subpoena. [00:40:21] Speaker 02: Why isn't it plausible if [00:40:23] Speaker 02: Let's assume it's not a library or a multi-unit IP address or Starbucks or anything like that. [00:40:31] Speaker 02: So it's a house. [00:40:33] Speaker 02: Why isn't it plausible that the subscriber that owns this account did it? [00:40:41] Speaker 02: So there's four people in the house. [00:40:43] Speaker 02: Is it 25% not possible? [00:40:47] Speaker 02: I think it's 25% evenly. [00:40:49] Speaker 00: I think that probably wouldn't be plausible under the Supreme Court. [00:40:53] Speaker 00: Really? [00:40:53] Speaker 00: The Supreme Court has said when there's alternative, obvious explanations. [00:40:57] Speaker 02: The alternative, obvious explanation has to negate the other one. [00:41:00] Speaker 02: And this one, this is like, you know, four people shot the gun at once and we don't know which one's bullet hit the person, right? [00:41:08] Speaker 02: But I think they're all, it's plausible to say they're all. [00:41:12] Speaker 00: I think I would disagree. [00:41:14] Speaker 00: I don't think it's possible to say that all four of them could be sued in court simultaneously because the allegation is that only one of them did it. [00:41:23] Speaker 00: And so if it's more likely that it's one of the other three than the person in the back. [00:41:27] Speaker 02: If there's a computer in a house that four people have access to, it's undisputed that all four of them have access to using it and maybe even use it sometimes. [00:41:37] Speaker 02: And child pornography is found on that computer. [00:41:41] Speaker 02: Is it true that a court would say you don't have probable cause [00:41:47] Speaker 00: I think most likely in that case you would have probable cause to get a warrant to search the hard drives and then you could arrest the owner. [00:41:53] Speaker 00: No, no, no. [00:41:53] Speaker 00: We know. [00:41:53] Speaker 02: I'm telling you we already know what's on the hard drives somehow, okay? [00:41:56] Speaker 02: And so is there not probable cause to arrest the owner? [00:41:59] Speaker 02: Or maybe arrest all four people? [00:42:00] Speaker 02: Would that not be probable cause? [00:42:02] Speaker 02: I'm just going to go with the owner because we're doing this. [00:42:03] Speaker 00: I think that probably would be probable cause to arrest the owner. [00:42:06] Speaker 02: And plausibility is higher than probable cause? [00:42:08] Speaker 00: Say that again? [00:42:08] Speaker 00: Yeah. [00:42:09] Speaker 02: Plausibility is higher than probable cause? [00:42:10] Speaker 00: No, no. [00:42:10] Speaker 00: Well, plausibility is not. [00:42:11] Speaker 00: But again, here you don't even know how many devices [00:42:14] Speaker 00: There are, and even in your hypothetical, if you have a situation where the, you know, 10 different people share the computer, that may be, that would be a factor I think you would want to weigh in the analysis. [00:42:28] Speaker 02: If the district court's rule were adopted and none of us can think of what more they could show at this stage, because we're not going to make people take a blood oath to litigate to the very end. [00:42:40] Speaker 02: Then isn't there another consequence if courts sort of adopt a rule that says nothing you can do to stop this infringement? [00:42:48] Speaker 02: Won't the infringement go through the roof? [00:42:50] Speaker 02: Do we have to worry about that? [00:42:51] Speaker 00: Two responses. [00:42:52] Speaker 00: I don't think the district court adopted a rule. [00:42:53] Speaker 00: And the court in affirming here wouldn't be endorsing a rule that says you can never get discovery. [00:43:00] Speaker 02: So in cases that involve whatever the district court thinks is apparently salacious, there's a rule that at least you're going to have to come back with more. [00:43:08] Speaker 02: Do you think, you don't think [00:43:10] Speaker 02: they could come back on another day and get a subpoena from the same judge, do you, without having shown something more? [00:43:15] Speaker 00: I don't think the privacy interests of the district court identified were the only factor. [00:43:20] Speaker 02: I think the pattern of... What more could they show to get this district court to issue a subpoena under the test of the district court? [00:43:27] Speaker 00: Well, at this point, it may be well too late, but that's because of Strike 3's... In another case. [00:43:31] Speaker 00: No, but I'm saying because of Strike 3's pattern of conduct over thousands of cases, if the court doors are not closed to it for discovery, it only has itself to blame because [00:43:39] Speaker 00: It never has shown that it's seeking this discovery to pursue claims in court. [00:43:44] Speaker 00: But that's not, that wouldn't be an issue for... Well, in Cobbler, they pursued the claim in court. [00:43:49] Speaker 04: Cobbler, they pursued the claim in court. [00:43:53] Speaker 00: That wasn't strike three. [00:43:54] Speaker 04: I don't even understand. [00:43:56] Speaker 04: What kind of requirement would that be? [00:44:01] Speaker 04: That they're going to file a complaint and sign an affidavit, just to attach the complaint saying, [00:44:07] Speaker 04: We want you to know no matter what, we are going to fully litigate. [00:44:11] Speaker 04: You've got to be saying that punnage. [00:44:13] Speaker 04: We appreciate your effort, but that one's got to be a punnage. [00:44:16] Speaker 00: I think I'm saying something different from what you're saying, Judge Edwards. [00:44:19] Speaker 00: I'm not saying that somebody has to swear they're going to pursue it at all costs. [00:44:22] Speaker 00: What I'm saying is when there's a pattern of filing thousands of cases, and you're unable to point to any case where you fought back against a defendant who is resisting your charges, [00:44:36] Speaker 00: then I think a district court could reasonably infer that you're not seeking this discovery to pursue the claims in court. [00:44:47] Speaker 06: I was just going to ask, how much of all of this argument exists against the background of what the district court suggested, which is maybe pornography is not subject to copyright protection? [00:44:57] Speaker 06: How much of that sort of suggestion? [00:45:00] Speaker 06: Do you agree with that suggestion? [00:45:03] Speaker 06: Do you think pornography is [00:45:05] Speaker 06: protected by copyright? [00:45:07] Speaker 00: No. [00:45:08] Speaker 00: I do think pornography is protected by copyright in general. [00:45:13] Speaker 00: I think, of course, there can be obscenity restrictions. [00:45:16] Speaker 00: I don't even know that that's a copyright issue. [00:45:19] Speaker 00: I think the district court was just simply noting that until 20 years ago or 30 years ago, it was actually still an open question. [00:45:27] Speaker 00: I don't think that had any influence on the district court's decision. [00:45:29] Speaker 06: Why mention it? [00:45:32] Speaker 00: I think just noting the history. [00:45:36] Speaker 00: I would point the court on the First Amendment issue and whether this type of looking at secondary effects, I think the court, the one case worth noting is the City of Brenton. [00:45:53] Speaker 00: That's 475 US 41. [00:45:55] Speaker 02: Is that the zoning case? [00:45:57] Speaker 00: That's the zoning case. [00:46:00] Speaker 00: whether it's okay to restrict the location of adult content films and not other content. [00:46:09] Speaker 00: If the court has no further questions, we ask that you refrain. [00:46:11] Speaker 02: Thank you very much. [00:46:15] Speaker 01: I just have a couple very short questions. [00:46:17] Speaker 02: Does Mr. Banlow have time left? [00:46:22] Speaker 02: We'll give you two minutes. [00:46:24] Speaker 01: Then just two points. [00:46:26] Speaker 01: One is this notion of, Judge Edwards noted this allegation of shame settlements. [00:46:31] Speaker 01: That's exactly what I said earlier about why we ask for protective orders. [00:46:35] Speaker 01: We want them in place so that no one can ever accuse us of that. [00:46:38] Speaker 01: We want it clear. [00:46:39] Speaker 01: We're never going to shame you by threatening to out you or reveal your content. [00:46:43] Speaker 01: We want a protective order in place so no one can ever allege we'll do that. [00:46:46] Speaker 01: And there's no evidence whatsoever that we've ever done that. [00:46:48] Speaker 01: In fact, the evidence presented to the court was to the contrary, that we only pursue cases that we think are very strong, good evidence, and that we have good faith bases to believe we're going after someone who's guilty. [00:46:58] Speaker 01: So the evidence, if we can look at Appendix Page 14 and see the evidence that was presented on that issue. [00:47:03] Speaker 01: Second, on the Zilli case that we cut and run. [00:47:06] Speaker 01: In the Zilli case, we litigated it for a year, by the way. [00:47:08] Speaker 01: We fought off numerous motions. [00:47:10] Speaker 01: They resisted us with all kinds of motions. [00:47:12] Speaker 01: We fought every single one of them. [00:47:13] Speaker 01: We won most of those motions. [00:47:15] Speaker 01: What happened in that case is the judge refused to give us the name for some time. [00:47:19] Speaker 01: When we finally got it, we did a further investigation. [00:47:22] Speaker 01: We determined it was likely the adult 50-year-old son who had lived in the house his whole life, who we later deposed and admitted he used BitTorrent to download adult content, but we determined [00:47:32] Speaker 01: Fairly impecunious defendants, and we've gotten our purpose. [00:47:37] Speaker 01: The infringement stopped, so it made some sense to dismiss. [00:47:40] Speaker 01: There's no, this fact that we don't have any trials, then 99% of the civil system needs to look out because every case gets resolved before trial. [00:47:48] Speaker 01: In fact, courts encourage you to resolve cases without trial. [00:47:51] Speaker 01: We're in this weird world where it says, [00:47:54] Speaker 01: You file a lot of actions. [00:47:55] Speaker 01: It might overwhelm the courts, but also you should try them all. [00:47:58] Speaker 01: You can have both. [00:47:59] Speaker 01: We're trying to be as reasonable as we can. [00:48:01] Speaker 01: So the ones that need to be tried, we'll try. [00:48:03] Speaker 01: The ones that don't, we resolve. [00:48:04] Speaker 02: Thank you. [00:48:07] Speaker 02: Is it accurate that once someone is identified as a defendant in your case, even if you don't pursue it further, they don't continue to download? [00:48:17] Speaker 01: We have found the infringement stops, yeah. [00:48:20] Speaker 01: There are some rare occasions where they start up again. [00:48:22] Speaker 01: We've found that same address doing it. [00:48:23] Speaker 01: But most of the time, and particularly when they get the ISP notice, we find it stops. [00:48:28] Speaker 02: So that's really what this is about? [00:48:30] Speaker 02: Stopping the infringement? [00:48:31] Speaker 02: Just, yeah, getting them identified in court and then they're going to stop. [00:48:35] Speaker 01: Well, it's certainly about stopping them. [00:48:36] Speaker 02: It's certainly about... I can imagine your litigation strategy is producing a lot of wealthy people who are going to pay damages. [00:48:42] Speaker 01: It's not, but it doesn't need to. [00:48:47] Speaker 01: That's one of the other aspects of our case. [00:48:48] Speaker 01: Our settlement demands are extremely low. [00:48:50] Speaker 01: We ask for a very, we ask for literally the least amount you can ask for under statutory damages, so we're very reasonable. [00:48:56] Speaker 01: We do want some compensation for the significant harm that's caused to us by infringement, but we do of course want it to stop. [00:49:02] Speaker 01: We want to send a message, go look at other content. [00:49:04] Speaker 01: Do you want to steal? [00:49:05] Speaker 01: Don't steal ours. [00:49:06] Speaker 01: So we're trying, we have a number of objectives here. [00:49:08] Speaker 02: Do you know if other content creators sue with this frequency? [00:49:13] Speaker 02: isn't limited to this content. [00:49:16] Speaker 01: I have a couple of mainstream cases myself. [00:49:18] Speaker 01: So the mainstream filmmakers are still bringing these cases at a significant level. [00:49:22] Speaker 01: My understanding is they're about to ramp up another round of it. [00:49:26] Speaker 01: The recording industry has done it. [00:49:28] Speaker 01: Software industry, Microsoft, et cetera, has done it. [00:49:31] Speaker 01: So a lot of content creators do these kinds of actions. [00:49:34] Speaker 01: Sometimes they have single work. [00:49:36] Speaker 01: We have a compounded problem of people stealing 50, 100, 200 of the works. [00:49:42] Speaker 02: Mr. Lloyd, you are appointed by the court to represent the judgment of the district court and the court is very grateful to you for your able assistance in this matter. [00:49:50] Speaker 02: The case is submitted.