Adult film distributor gets $21K vs. ‘John Doe’ infringer

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A federal judge in Boston recently had to decide the question of whether he could order a default judgment against a “John Doe” internet user who allegedly infringed on copyrights held by an adult film distributor while it remains an open question as to whether pornography is afforded the protections of the Copyright Act in the first place.

The complaint in Strike 3 Holdings, LLC v. Doe alleged the defendant, an unnamed internet subscriber with the IP address 108.7.222.66, infringed on the copyrights the plaintiff has registered on 28 “award winning” and “critically acclaimed” adult films which it distributes through DVD and online sales.

According to the plaintiff, for an extended period of time the defendant used a program called a “BitTorrent protocol” to anonymously download and share the 28 movies without authorization.

Court records indicate that the plaintiff was later granted leave to subpoena a third-party internet service provider to obtain the identity of the defendant. Once further investigation established the defendant’s true identity, the plaintiff obtained service of the complaint at the defendant’s residence and the case proceeded with his name under seal.

When the defendant failed to respond to the complaint, Strike 3 sought a default judgment.

But presiding Judge Nathaniel M. Gorton recognized that granting a default judgment under these circumstances was no easy matter, given that whether federal copyright laws extend to protect pornographic materials is an open question in the 1st U.S. Circuit Court of Appeals, as well as in many other circuits.

“To be sure, it is unsettled whether pornographic materials are entitled to copyright protections at all,” Gorton wrote in his Nov. 7 order granting Strike 3’s motion. “In the absence of guidance from the First Circuit, however, this court would readily deny the relief the plaintiff seeks but is constrained from doing so.”

The judge found sound reasons for granting Strike 3 the relief it requested. He explained that a default judgment was in order because the plaintiff alleged a cognizable claim for copyright infringement based on its unrebutted allegations that Strike 3 had “properly” registered all 28 of its pornographic films with the U.S. Copyright Office and that the defendant reproduced and distributed those films over the internet without the plaintiff’s authorization.

In this regard, the judge cited caselaw in support of the proposition that federal copyright law seeks to avoid exceptions based on content and that a plaintiff can satisfy a prima facie showing of copyright infringement, in part, by relying on the undisputed fact of being a registered copyright holder.

Finding the plaintiff had stated a cognizable claim of copyright infringement to justify entry of a default judgment, Gorton turned to the question of damages.

Under 17 U.S.C. §504(c)(1)-(2), a copyright holder is entitled to statutory damages between $750 and $30,000 for the infringement of a single work. Strike 3 requested the statutory minimum of $750 per violation, or a total of $21,000 for infringement of each of its 28 films.

Finding the requested damages adequately supported by the complaint, the judge ordered the defendant to pay the $21,000.

In addition, the judge granted Strike 3 its requested injunctive relief.

“In this case, the plaintiff has already established … a likelihood of success on the merits of its copyright infringement claim,” Gorton wrote. “Despite the prurient nature of plaintiff’s copyrights, the law presumes it would suffer irreparable harm from that infringement. By the same token, the law also assumes that the public interest favors the protection of copyrighted material, even those with licentious content. Finally, there can be no possibility of harm to the defendant from an injunction barring him from distributing materials he is not in fact authorized to distribute.”

Strike 3’s attorney, Jacqueline M. James of White Plains, New York, did not respond to a request for comment.

According to the docket for the U.S. District Court in Massachusetts, Strike 3 has filed more than 360 similar actions against John Doe defendants since 2022.

“This is a very lucrative area for copyright trolls,” says Craig R. Smith, an intellectual property litigator at Lando & Anastasi in Boston.

According to Smith, it’s very rare for cases like the Strike 3 cases to end up going to trial.

“The whole idea behind these cases is that you file these complaints, you then identify who the individual is through a subpoena [to their internet service provider], and then you try to settle with the person because the person does not want their name to be publicly identified,” says Smith.

Despite the uncertainty in the courts as to whether pornographic material is protected under the Copyright Act, Smith says the producers and distributors have no difficulty getting their material registered with the Copyright Office.

“The Copyright Office has taken the view that it is not going to evaluate material based on whether it is obscene or not,” Smith says. “[The office’s guidance] specifically says that pornographic material may be registered provided that [it contains] a sufficient level of original authorship.”