Strike 3 "strikes out" in federal copyright appeal
Channel: Steve Vondran
Date: 2021-05-11

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STRIKE THREE HOLDINGS SHOW SOME CHINKS IN THEIR ARMOR

In this episode of Litigation Whiteboard® Attorney Steve® discusses the big loss by Strike 3 Holdings in their appeal to the 9th Circuit court of appeals. This case shows that Strike 3 Holdings is not invincible and there are defenses and strategies to prevail in a civil lawsuit.

John Doe case holding in Washington:
 
This is the case everybody has been watching (or should I say many copyright BitTorrent lawyers like myself) to see what would happen at the 9th circuit court of appeals

Strike 3 Holdings LLC v. Doe, No. 20-35196, 2021 U.S. App. LEXIS 7918 (9th Cir. Mar. 18, 2021).

CASE HOLDING

Strike 3 Holdings, LLC appeals the district court's award of attorney's fees in favor of John Doe on Doe's counterclaim for non-infringement. Strike 3 argues that Doe lacked standing to pursue his counterclaim because Strike 3 voluntarily dismissed its copyright infringement claim against Doe and could not renew that claim in the future. Strike 3 also contends that the district court abused its discretion by awarding fees under the Copyright Act, 17 U.S.C. § 505 because the fee award did not further the Act's essential goals.  Doe retained standing to pursue his declaratory relief counterclaim despite Strike 3 voluntarily dismissing its complaint without prejudice. 

Strike 3's voluntary dismissal of its infringement claims against Doe placed him in the precarious position of deciding whether to pursue his non-infringement counterclaim or to surrender the claim and hope that Strike 3 would not bring further action based on his prior alleged infringement. And while Strike 3 enjoyed the "absolute right" to dismiss its infringement claim under Federal Rule Civil Procedure 41(a)(1), Am. Soccer Co., Inc. v. Score First Enters., 187 F.3d 1108, 1110 (9th Cir. 1999), it did not have the absolute right to choose the consequences of its without-prejudice dismissal. Doe's fear of future prosecution, based on the very real prosecution to that point and the thinly veiled threats of future contributory-infringement claims, was concrete and imminent. Nor are we persuaded by Strike 3's claim that Cobbler Nev., LLC v. Gonzales, 901 F.3d 1142, 1147 (9th Cir. 2018) or Strike 3's proposed covenant not to sue rendered Doe's fear of future litigation speculative. 

Here are some of the background videos mentioned in this video (good to watch):

1.  Copyright infringement penalties:  https://bit.ly/3uGgMaK

2.  What is a "John Doe" defendant: https://youtu.be/Ll-tlL1lJFA

3.  Declaratory judgment explained:  https://youtu.be/11_GgXFPe4k

4.  Overview of BitTorrent lawsuits:  https://youtu.be/rc4OROnuWAM

5.  Cobbler Nevada case by Attorney Steve®:  https://youtu.be/CRRDRx2bF5Y

Contact us if you received a notice of infringement (subpoena) from your ISP.  No other law firm is as committed as we are to tracking and following the cases, and fighting for the rights of internet users.  We have handled hundreds of cases and most of the cases are filed in California.

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