Why Did You Receive a Strike 3 Anonymous Subpoena in the First Place?

Here is the situation: you just received a subpoena from your internet service provider (ISP) in which Strike 3 Holdings (“Strike 3”) is trying to find out your identity so they can sue you by name. The cover letter says that if you do not challenge the subpoena successfully within the next thirty (30) days, your ISP will give Strike 3 your name and identifying information.

What does that mean? You will likely be added to a publicly available lawsuit caption, which means that your friends, family and co-workers may learn that you are a defendant. Why is that a problem?

Because the lawsuit will likely allege that you illegally downloaded pornography using the dark web (Tor, BitTorrent, etc.). It will detail the specific downloads distributed under names such as Blacked, Tushy, Vixen and Blacked Raw. It will state that you engaged in peer-to-peer sharing networks to unlawfully download that content in violation of the Copyright Act, 17 U.S.C. § 101, et seq.

But there is a twist: if you pay Strike 3 to settle the case, they will consider dropping you as a potential party. You are essentially going to purchase your anonymity.

Is this legal? You would be surprised at how many courts nationwide have taken the position that it is not only legal, but that Strike 3 is justified because its rights under the United States copyright laws have been violated. This link provides an example of just such a judicial holding.

For well over ten years, our law firm has handled many of these cases. We approach our representation with patience and empathy; there is a basic unfairness in using copyright law to shame people into paying to preserve their anonymity. In short, we will represent you with discretion and care and do what we can to minimize the fallout.

Is There Any Defense to a Strike 3 Holdings, LLC Subpoena?

Is there a legal defense you can raise against this coercive situation or at least some way to challenge it? The answer is complex.

Let’s assume that the subpoena you received was issued in a lawsuit pending in the federal courts. As a general rule, Federal Rule of Civil Procedure 10 requires parties in litigation to be named. (“Every pleading must have a caption with the court’s name, a title, a file number, and a Rule 7(a) designation. The title of the complaint must name all the parties; the title of other pleadings, after naming the first party on each side, may refer generally to other parties.”).

Nevertheless, even in the absence of express permission to do so within the bounds of Fed. R. Civ. P. 10(a), the federal courts have permitted litigants to proceed pseudonymously—without providing their actual name—where the moving party has been able to demonstrate a reasonable fear of “severe harm” resulting from the public disclosure of his or her name in connection with a proceeding. See also Fed. R. Civ. P. 5.2(e) (authorizing the court to grant protective orders redacting additional information from court filings for good cause); Fed. R. Civ. P. 26(c) (1) (permitting the court to issue a protective order protecting a party from “annoyance, embarrassment, oppression, or undue burden or expense” for good cause). When such a showing has been made, the court must then determine whether the movant’s reasonable fear outweighs the public’s interest in transparency of judicial proceedings.

Indeed, there is a non-exhaustive list of factors that balance the person seeking confidentiality of their name against the public’s interest in open judicial proceedings. They are:

1. the extent to which the identity of the litigant has been kept confidential;
2. the bases upon which disclosure is feared or sought to be avoided, and the substantiality of these bases;
3. the magnitude of the public interest in maintaining the confidentiality of the litigant’s identity;
4. whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigant’s identities;
5. the undesirability of an outcome adverse to the pseudonymous party and attributable to his refusal to pursue the case at the price of being publicly identified; and
6. whether the party seeking to sue pseudonymously has illegitimate ulterior motives.

Of course there are also factors which disfavor a grant of anonymity. They are:

1. the universal level of public interest in access to the identities of litigants;
2. whether, because of the subject matter of this litigation, the status of the litigant as a public figure, or otherwise, there is a particularly strong interest in knowing the litigant’s identities, beyond the public’s interest which is normally obtained; and
3. whether the opposition to pseudonym by counsel, the public, or the press is illegitimately motivated.

As one might imagine, the ability to make a determination on whether the moving party should be allowed to proceed anonymously rests within the sound discretion of the court. However, the larger point is that there is at least a basis in certain federal court jurisdictions—and possibly certain state courts as well—to make the argument that anonymity should be preserved during the pendency of the litigation.

If you Have Received a Strike 3 Subpoena, Please Feel Free to Contact us.

If you have received such a subpoena or other court filing, please reach out to us to discuss whether we can be of assistance. We want to listen, and if possible, to help.

Publications & Presentations

Gary D. Nissenbaum, Esq.

• Augmented Reality: Gotta Protect That IP, by Gary D. Nissenbaum, Esq. and Laura J. Magedoff, Esq., Apptentive, September 22, 2016
• Profiled in: Gary D. Nissenbaum: Ace Gaming Attorney, by David Radd, Gamesauce, September 10, 2016
• The Increasing Pace of Digital Change: Why Does Our Culture Always Seem so Blindsided?, Huffington Post, August 4, 2016
• The Intriguing Legal Ramifications of Pokémon GO, BrettTerpstra.com, July 25, 2016
• Potential Legal Approaches to a Cyberbullying (Co-author), The Young Lawyer, American Bar Association Young Lawyers Division, 2013
• Receiving Classified Information: Government Secrecy and the Litigation Process(Co-author), NJ Lawyer Magazine, October 2009
• Wrongful Posting on the Internet: The Privacy You Save Could be Your Own, NJ Lawyer Magazine, April, 2008
• 3/1/18 Interview of Mr. Nissenbaum, Systematic, “The Psychodynamics of Lawyering with Gary Nissenbaum”
• 1/22/18 Interview of Mr. Nissenbaum, Game Dev Unchained, “The Indie Legal Guide With Gary Nissenbaum”
• 11/21/17 Interview of Mr. Nissenbaum, Gamesindustry.biz Podcasts, “Licensing Your Intellectual Property”
• 11/3/17 Interview of Mr. Nissenbaum, Developer Tea Podcast, “The Future (and Past) of Legal for Developers w/Gary Nissenbaum (part 1)”
• 11/3/17 Interview of Mr. Nissenbaum, Developer Tea Podcast, “The Future (and Past) of Legal for Developers w/Gary Nissenbaum (part 2)”
• 10/19/17 Interview of Mr. Nissenbaum, Complete Developer Podcast, “Developers and the Law”
• 10/13/17 Interview of Mr. Nissenbaum, Hansel Minutes Podcast, “Latest Developments in App and Website Law Regarding Clickable Terms and Conditions”

Laura J. Magedoff, Esq.

• Augmented Reality: Gotta Protect That IP, by Gary D. Nissenbaum, Esq. and Laura J. Magedoff, Esq., Apptentive, September 22, 2016
• Potential Legal Approaches to a Cyberbullying Case (Co-author), The Young Lawyer, American Bar Association Young Lawyers Division, 2013
• New York County Lawyer’s Association, EMIPS Committee Comments to New York State Bar Association Report of the Privacy Task Force, Contributing Author, March 2009
• Wrongful Posting on the Internet: The Privacy You Save Could be Your Own, NJ Lawyer Magazine, April, 2008
• Panelist, Intellectual Property Protection & Enforcement, New Jersey Bar Association Annual Conference, Atlantic City, NJ, May 2017
• Panelist, Empower – I Create Nothing. I Own it: A Panel about Establishing and Protecting your Intellectual Property as a Business Asset, New Jersey Association of Women Business Owners’ Annual Conference, New Brunswick, New Jersey, October 2010
• Moderator, Engage – The most Powerful Commodity I know is Information, New Jersey Association of Women Business Owners’ Annual Conference, New Brunswick, New Jersey, October 2010
• Panelist, Casino Law 2010: Game On!, 2010 South CLEFest, Atlantic City, NJ, August 2010
• Presented Seminar, Protecting Your Online Image, Various 2009-Present