Strike 3 Holdings / BitTorrent Defense

Your internet service provider sent you a notice. Strike 3 Holdings wants your name.

You are not the first person this has happened to, and you are not alone. Strike 3 Holdings files hundreds of these cases every year in federal courts across the country. The model is simple: subpoena the ISP, get the subscriber's identity, and leverage the embarrassment of being named in a copyright infringement lawsuit — often involving adult content — to force a quick settlement. Most defendants have never been to federal court. Most defendants panic. That is exactly what Strike 3 is counting on.

Jonathan Phillips has defended BitTorrent cases since their earliest days under the now-notorious Prenda Law firm. He has handled well over one hundred of these disputes in federal courts throughout the United States. The Illinois State Bar Association has published his writings on BitTorrent defense twice. He has been recognized as an Emerging Lawyer in Intellectual Property and chairs the ISBA's Intellectual Property Section Council. He has built a network of local counsel that allows him to represent clients in districts across the country.

Most BitTorrent defense attorneys settle cases. Jonathan does too — when settlement is the right result. But he is one of the very few BitTorrent defense attorneys in the country who has actually taken one of these cases all the way to a contested summary judgment, won, and then pursued the plaintiff for attorney's fees. That is not a common outcome in this space. It matters.

How These Cases Work

Strike 3 Holdings, and plaintiffs like it, use geolocation data tied to IP addresses to identify internet connections they claim were used to download copyrighted content via BitTorrent. They file suit against a "John Doe" defendant — identified only by IP address — and immediately subpoena the internet service provider to get the subscriber's name. Once they have a name, the pressure campaign begins.

The IP address is not the person. That is the central weakness in every one of these cases. An IP address identifies a router, not a human being. Anyone who had access to that connection — a family member, a roommate, a neighbor, a guest — could have been responsible for the alleged download. Strike 3 knows this. Its business model does not depend on winning at trial. It depends on defendants settling before anyone looks too closely at the evidence.

The Defenses

The IP address argument is the most powerful. If Strike 3 cannot connect the IP address to a specific individual with reliable evidence, its case is built on inference rather than proof. Courts have grown increasingly skeptical of these cases, and several judges have imposed strict requirements on Strike 3 before allowing it to proceed to the identity-subpoena stage at all.

Procedural defenses matter early. Jonathan has successfully argued at the outset of cases that Strike 3 has not met its burden to justify unmasking a subscriber's identity, buying time and leverage before a client is ever publicly named.

Sealing is available in some circumstances. Once a client is named publicly, the reputational damage from the lawsuit's subject matter can be significant regardless of the outcome. Moving quickly to seal the record — and Jonathan has done this successfully — can protect a client from public exposure even after the suit is filed.

Settlement is often the right result, but on the right terms. Strike 3's initial demands frequently bear no relationship to what courts actually award in these cases. Jonathan has resolved the overwhelming majority of his BitTorrent cases on terms his clients found acceptable — in some instances before Strike 3 was ever able to obtain the client's identity.

Results

Most defendants in BitTorrent cases never get to test whether Strike 3 can actually prove its case. Jonathan did. In a Malibu Media case in the Northern District of Illinois, he took the case through full discovery, served targeted discovery aimed at exposing the core weaknesses in the plaintiff's evidence, and fully briefed cross-motions for summary judgment. Magistrate Judge Brown granted Jonathan's client's motion for summary judgment — one of the first defense victories against one of the most prolific copyright plaintiffs in the country at the time. Jonathan then sought attorney's fees. Rather than litigate that motion to conclusion, the plaintiff settled on terms favorable to his client.

That sequence — contested summary judgment win, fee motion, favorable resolution — is not how these cases usually end. It is the result of being willing to go further than the plaintiff expected.

His other results include pre-identity settlements where the plaintiff never learned his client's name, sealed filings after public identification, and dismissals where the court's order specifically noted it was apparent the client was not the infringer. Jonathan has obtained favorable results for defendants in courts across the country, including the Northern District of Illinois, the Southern District of New York, the Southern District of Texas, and the District of Colorado.

Past results do not guarantee future outcomes. But when the plaintiff's entire strategy depends on you being too afraid to fight back, experience and willingness to go the distance changes the equation entirely.