Judge Royce Lamberth of the U.S. District Court for the District of Columbia. Nov. 29, 2012. Photo by Diego M. Radzinschi/ALM

In a rare and forceful rebuke, a Washington, D.C., federal judge this month blasted a pornographic film producer that Fox Rothschild has represented in more than 1,500 copyright infringement cases as a “copyright troll” that floods courts with cases “smacking of extortion.”

Los Angeles-based Fox Rothschild partner Lincoln Bandlow coordinates a national copyright infringement campaign that has made porn company Strike 3 Holdings one of the most litigious companies in the U.S. over the past 13 months. The lawsuits accuse unnamed defendants of stealing Strike 3’s porn movies through BitTorrent sharing sites. The suits seek monetary settlements and almost always settle.

U.S. District Judge Royce Lamberth of the District of Columbia noted in his opinion this month that virtually zero cases have reached an appellate court.

“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,” Lamberth 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.”

The history of porn copyright enforcement litigation is replete with lawyers who have faced formal discipline proceedings or have been chastised by courts—though the involvement of an Am Law 100 firm like Fox Rothschild is unusual. In August, Paul Hansmeier, a Minnesota-based lawyer who was a leader of a porn copyright scheme known as Prenda Law, pleaded guilty to federal fraud charges that could carry up to 12 and a half years in prison. John Steele, another member of the Prenda Law copyright campaign, pleaded guilty in March 2017 to seven counts of conspiracy to commit mail fraud and wire fraud and conspiracy to commit money laundering.

Bandlow, who has in the past pushed back against comparisons of Strike 3 to Prenda, said in a statement that Lamberth’s “ruling is wrong on the facts and the law.” He said an appeals court would “correct this anomalous decision,” and that Strike 3 needed to be able to protect its copyrights in order to sustain paying its employees.

“It reads like an unsupported ‘Prenda parade of horribles’ that defendants often use in motions in an attempt to avoid being held liable for copyright infringement that we have seen a few times in these cases,” Bandlow said of Lamberth’s opinion. “Fortunately, we have been able to respond to such motions and every time we have done so, we have demonstrated, and courts have routinely held, that we have been very respectful in our cases, always protected defendants’ privacy, never engaged in any improper tactics and have, when necessary, litigated these cases.”

Fox Rothschild’s Lincoln Bandlow

What makes Lamberth’s opinion especially striking is that it came at a time when the defendant in the case wasn’t even known, let alone actively defending the suit. The opinion denied a Fox Rothschild request to serve a subpoena on an internet provider as a way to determine the name and address of the defendant who allegedly stole 22 Strike 3 films.

That step is essential in the copyright litigation campaign, since the technology Strike 3 and Fox Rothschild rely on to find downloaders of its films can only track an internet user’s IP address. The litigants then ask courts to force internet providers to turn over contact information related to those addresses—a request most judges agree to.

But Lamberth said the system Strike 3 relies upon is rife with errors that can lead to the wrong defendant being named in a case. Coupled with the potentially embarrassing nature of being wrongly linked with stealing pornography, Lamberth wrote that the defendant’s right to privacy outweighed Strike 3’s discovery needs.

“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,” Lamberth wrote. “They don’t seem to care about whether defendant actually did the infringing, or about developing the law. If a Billy Goat Gruff moves to confront a copyright troll in court, the troll cuts and runs back under its bridge. Perhaps the trolls fear a court disrupting their rinse-wash-and-repeat approach.”

In a case profiled by The American Lawyer in June, Fox Rothschild lawyers in August dropped a case in Washington dtate that was actively defended by a lawyer who alleged his client had been wrongly named.

Lamberth said Strike 3’s request lacked the specificity required by a U.S. Court of Appeals for the Second Circuit analysis that sought to balance the plaintiff’s show of harm with the subpoena request’s specificity and an objecting party’s expectation of privacy.

Lamberth found that Strike 3’s request failed the test because it is uncertain that the request will lead to identifying a defendant who can be sued for copyright infringement. That would require looking at physical evidence such as a defendant’s computer, rather than simply relying upon the plaintiff’s suggested evidence, Lamberth said.

“Given this uncertainty, Strike 3 cannot overcome the defendant’s weighty privacy expectation,” Lamberth wrote. “Imagine having your name and reputation publicly—and permanently—connected to websites like Tushy and Blacked Raw. (Google them at your own risk.) How would an improperly accused defendant’s spouse react? His (or her) boss? The head of the local neighborhood watch? The risks of a false accusation are real; the consequences are hard to overstate and even harder to undo.”

Lamberth’s ruling could be a potential setback for Strike 3 if other judges decide to rely on his reasoning to deny Strike 3’s subpoena requests. So far, at least in the District of Columbia, that hasn’t happened.

Court records show two requests for subpoenas have been granted by different judges since Lamberth’s ruling, and one Strike 3 case has been dismissed by the plaintiff, suggesting a potential settlement was reached. Nationally, Strike 3 has filed 69 new copyright infringement suits since Lamberth’s opinion was filed Nov. 16, according to data from Lex Machina.

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Fox Rothschild and the ‘Dark Art of Copyright Trolling’