XXXposure: An Adult Film Company Uses the Threat of Public Naming To Negotiate With Online Pirates

Which of the following best explains the business model of Strike 3 Holdings, LLC? Is it:
- Creators of adult films?
- Vigorous defenders of the Copyright Act?
- Copyright trolls who border on extortion?
Depending on who you ask, it could be all three. The extremely litigious firm has filed well over 15,000 lawsuits in federal court over the past eight years and shows no intention of slowing down.
Are they defending their intellectual property or using the courts to take advantage of people caught in an embarrassing position? At least one federal judge thinks it's the latter.
Yarr, Here There Be Pirates
Strike 3 oversees a number of adult film companies. Collectively known as Vixen Media Group, they have a reputation for producing high-end content. Their pay-to-view network averages over 30 million customers per month. While that may sound like a profitable venture, it's only one of the ways they generate revenue.
As is often the case with any industry that offers a streaming product online, Strike 3 has to contend with so-called "pirates." Instead of paying for the product at one of Vixen's websites, offenders download content through torrents. These are a way to anonymously (sort of) share files.
Whether or not a download is illegal depends on what's being shared. Material still under copyright protection is legally actionable, something Strike 3 is clearly well aware of. To paraphrase a famous movie line, they find the perpetrators and make them an offer they can't refuse.
Fame or Shame?
Instead of writing off the illegal downloads, Strike 3 has figured out a way to monetize them using the legal system as a weapon. After detecting an illegal download, Strike 3 files a suit in federal court against the John Doe who owns the IP address. With this in place, they then use the authority of the Digital Millennium Copyright Act to subpoena the internet service provider (ISP) for the IP customer's name and address.
The ISP must alert the customer and inform them that they're compelled by law to release their name and address to Strike 3 in 30 days. Once Strike 3 has that information, they contact the IP customer and alert them that they're being charged in civil court for copyright violation. The damage amount they're seeking is usually $150,000.
While Strike 3 has the IP address, they have no way of identifying who actually committed the illegal download. They also need to prove that the pirate was aware of what they were downloading and did so willfully. The damages for 'not willful' downloads are significantly lower. Given the challenges facing Strike 3, why would anyone settle?
Once Strike 3 has the name and address of the IP customer, they can amend the suit to include both. They can also add the websites and movies that were illegally downloaded. These often leave little to the imagination — Tushy is one of the least suggestive ones — and will be part of legal papers that are public records.
It's not difficult to see how this gives Strike 3's attorneys leverage in the negotiations that often take place before the name is added. They don't need to have the person who did the actual download if the IP customer doesn't want to face possible public shaming. Another burden a defendant faces is the cost of an attorney.
If this sounds like borderline extortion to you, you're not alone. In 2018, a federal judge ruled that Strike 3 was using the courts to shakedown defendants and denied the release of personal information. Since they then had no way to serve a defendant, the case was dismissed.
That setback didn't appear to deter Strike 3 much. After a dip during the pandemic, the number of lawsuits they've filed has steadily risen over the past four years.
Against a Ticking Clock
Those served with a subpoena have battled back in various ways. Depending on the laws of their state, some filed a motion to quash during the 30 days. Others hired attorneys who were able to keep the case as a John Doe, protecting the anonymity of their clients and somewhat compromising Strike 3's leverage as a settlement was reached.
There's no evidence that Strike 3 has successfully collected the full $150,000 from any of their lawsuits. Whether or not they have, they seem poised to continue making porn pirates walk the plank to a settlement.
Related Resources
- ISP Liability for the Acts of Its Customers (FindLaw's Small Business Law)
- Intellectual Property Law (FindLaw's Learn About the Law)
- Illegal Downloads: What Are the Penalties? (FindLaw's Law and Daily Life)