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`Case 2:17-cv-01731-TSZ Document 188 Filed 02/03/20 Page 1 of 16
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`STRIKE 3 HOLDINGS, LLC,
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` v.
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`Plaintiff,
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`JOHN DOE (73.225.38.130),
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`Defendant.
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`C17-1731 TSZ
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`ORDER
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`THIS MATTER comes before the Court on defendant John Doe’s motion for
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`summary judgment, docket no. 174. Having reviewed all papers filed in support of, and
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`in opposition to, the motion, including plaintiff’s supplemental response, docket no. 183,
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`and defendant’s supplemental reply, docket no. 185, which were permitted by Minute
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`Order entered September 19, 2019, docket no. 182, the Court enters the following order.
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`Background
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`Plaintiff Strike 3 Holdings, LLC (“Strike 3”), a purveyor of pornographic motion
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`pictures, which are distributed through the websites Blacked, Tushy, and Vixen and on
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`digital versatile discs (“DVDs”), commenced this copyright infringement action against
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`defendant John Doe in November 2017. See Compl. (docket no. 1). Strike 3 sought
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`leave to serve a subpoena duces tecum on an Internet Service Provider (“ISP”) for
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`purposes of obtaining John Doe’s identity as the subscriber associated with Internet
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`Protocol (“IP”) address 73.225.38.130. See Pla.’s Mot. (docket no. 4). In support of this
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`ORDER - 1
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`Case 2:17-cv-01731-TSZ Document 188 Filed 02/03/20 Page 2 of 16
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`request, Strike 3 submitted four declarations, two of which are relevant to the issues
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`raised in John Doe’s pending motion for summary judgment, namely (i) the declaration
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`of Tobias Fieser, an employee of IPP International UG (“IPP”), a German company that
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`provides forensic investigation services to copyright owners, see Fieser Decl. at ¶¶ 3-4
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`(docket no. 4-3), and (ii) the declaration of Susan Stalzer, an individual who works for
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`Strike 3, see Stalzer Decl. at ¶ 3 (docket no. 4-5).
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`In his declaration dated November 21, 2017, Fieser indicated that he had reviewed
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`“IPP’s forensic activity records” and had “determined that IPP’s forensic servers [had]
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`connected to an electronic device using IP Address 73.225.38.130.” See Fieser Decl. at
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`¶ 7 (docket no. 4-3). According to Fieser, this IP address was “documented distributing
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`to IPP’s servers multiple pieces of Strike 3’s copyrighted movies listed on Exhibit A to
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`Strike 3’s Complaint.” Id. Exhibit A to the Complaint lists 80 items in a spreadsheet
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`format with columns labeled “Work,” “Hash,” “Site,” “UTC,” “Published,” “CRO App.
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`File Date,” and “CRO Number.” Ex. A to Compl. (docket no. 1 at 9-13). The Complaint
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`does not define UTC or CRO, but these acronyms appear to mean, respectively,
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`coordinated universal time and Copyright Office, and the term “App.” seems to be an
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`abbreviation for application. The first five rows of the spreadsheet are reproduced in
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`Figure 1.
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`Fig. 1: Excerpt of Exhibit A to Complaint (docket no. 1 at 9).
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`ORDER - 2
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`Case 2:17-cv-01731-TSZ Document 188 Filed 02/03/20 Page 3 of 16
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`The Complaint alleges that the “cryptographic hash value” of a piece of a file (or
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`“piece hash”) serves as that piece’s “unique digital fingerprint.” Compl. at ¶ 21 (docket
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`no. 1); see also Am. Compl. at ¶ 22 (docket no. 43). The Complaint further states that an
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`entire digital media file also has a unique “cryptographic hash value” (or “file hash”) that
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`identifies the file (or movie); after all pieces comprising a digital file are downloaded, the
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`software at issue, known as BitTorrent,1 uses the “file hash” to confirm that the file is
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`“complete and accurate.” Compl. at ¶ 22 (docket no. 1); see also Am. Compl. at ¶ 23
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`(docket no. 43). Neither the Complaint nor the Amended Complaint make clear whether
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`the sequence of letters and numbers appearing under the column in Exhibit A labeled
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`“Hash” are “piece hash” or “file hash” values.
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`Based on Fieser’s declaration, however, the reasonable inference to be drawn is
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`that the “Hash” sequences listed in Exhibit A to the Complaint are “file hash,” and not
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`“piece hash,” values. In his declaration, Fieser reported that IPP’s software “analyzed
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`each BitTorrent ‘piece’ distributed by Defendant’s IP Address” and “verified that
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`reassembling the pieces using a specialized BitTorrent client results in a fully playable
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`digital movie.” Fieser Decl. at ¶ 9 (docket no. 4-3). Fieser further asserted that IPP’s
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`software “determined that the files being distributed by Defendant’s IP Address have a
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`unique identifier of the Cryptographic Hash outlined on Exhibit A.” Id. at ¶ 10 (emphasis
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`1 BitTorrent is a peer-to-peer file-sharing program. See Patrick Collins, Inc. v. Does 1-28, 2013
`WL 359759 at *1 (E.D. Mich. Jan. 29, 2013). BitTorrent users (or peers) access the Internet
`through ISPs and request particular files. See id. at *3. Peers who are members of a “swarm”
`engage with each other through the BitTorrent system, simultaneously downloading and
`uploading pieces of a desired file. See id. at *1 & *3.
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`ORDER - 3
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`Case 2:17-cv-01731-TSZ Document 188 Filed 02/03/20 Page 4 of 16
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`added). In other words, each of the values listed under “Hash” in Exhibit A is a “file
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`hash.”
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`This conclusion is consistent with the averments in Stalzer’s declaration dated
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`November 20, 2017. According to Stalzer, to perform her task of verifying that copyright
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`infringement had occurred, she was provided with “the infringing motion picture file for
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`each of the file hashes listed on Exhibit A to Strike 3’s Complaint,” and she “viewed each
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`of the unauthorized motion pictures corresponding to the file hashes side by side with
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`Strike 3’s motion pictures, as published on the Blacked, Tushy, and/or Vixen websites
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`and enumerated on Exhibit A by their United States Copyright Office identification
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`numbers.” Stalzer Decl. at ¶¶ 7-9 (docket no. 4-5) (emphasis added).
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`Strike 3’s success in obtaining permission to serve a Rule 45 subpoena on the ISP,
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`which eventually supplied the information necessary to effect service on John Doe, was
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`due primarily to Fieser’s and Stalzer’s declarations. See Order (docket no. 5). Strike 3
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`later dismissed its copyright infringement claim against John Doe, but by then, John Doe
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`had asserted counterclaims, one of which remains pending, namely for a declaration of
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`non-infringement. See Order (docket no. 167). John Doe now seeks summary judgment
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`on his declaratory judgment counterclaim, as well as attorney’s fees and costs pursuant to
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`17 U.S.C. § 505, which vests the Court with discretion to award attorney’s fees and costs
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`to the prevailing party in an action brought under the Copyright Act.
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`At the time John Doe filed his dispositive motion, four discovery motions were
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`pending. In one of these motions, docket no. 125, Strike 3 sought to compel John Doe to
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`produce two computer hard drives. In light of the issues raised in John Doe’s dispositive
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`ORDER - 4
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`Case 2:17-cv-01731-TSZ Document 188 Filed 02/03/20 Page 5 of 16
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`motion, the Court partially granted Strike 3’s motion to compel and, with respect to one
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`of the hard drives (Serial No. 9VP05TWX), allowed Strike 3’s expert to examine, with
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`certain restrictions, the copy that had been made for forensic purposes (the “imaged” hard
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`drive). See Minute Order at ¶ 1 & n.1 (docket no. 182). The scope of Strike 3’s expert’s
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`review was limited to searching the “imaged” hard drive for existing and deleted files
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`matching the hash values set forth in Exhibit A to the Complaint. Id. If such files were
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`discovered, Strike 3’s expert was authorized to copy and/or otherwise make a record
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`concerning the presence of those materials. Id. at ¶ 1. Strike 3 never asked the Court to
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`broaden or modify the terms of the Minute Order entered on September 19, 2019, docket
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`no. 182, which dealt with inter alia Strike 3’s motion to compel production of John Doe’s
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`hard drives.
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`Instead, in its supplemental response to John Doe’s summary judgment motion,
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`Strike 3 complains that its expert could not conduct a meaningful examination of the
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`“imaged” hard drive without violating the provisions of the September 2019 Minute
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`Order, and he therefore did not perform any analysis. Strike 3 now repudiates Fieser’s
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`and Stalzer’s declarations and asserts that the “Hash” sequences listed in Exhibit A are
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`“Info Hashes,” which are merely “the data that the BitTorrent protocol uses to identify
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`and locate the desired file . . . across the BitTorrent network.” Pla.’s Supp. Resp. at 2-3
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`(docket no. 183). Strike 3 contends that “the only way to search Defendant’s hard drive
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`for the Exhibit A Hashes” would be “to view every .torrent file on Defendant’s hard drive
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`to determine if it matched the Exhibit A hashes.” Id. at 3-4. Rather than seek any relief
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`ORDER - 5
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`Case 2:17-cv-01731-TSZ Document 188 Filed 02/03/20 Page 6 of 16
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`from the restrictions imposed by the Court, Strike 3 has chosen to forego examination of
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`the “imaged” hard drive.
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`In support of its decision, Strike 3 offers the declaration of Patrick Paige, a
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`member of Computer Forensic, LLC, who has been retained by Strike 3 as a computer
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`forensics expert. See Paige Decl. at ¶ 1 (docket no. 184).2 Paige explains that an “Info
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`Hash” is a “value of specific data contained within a .torrent file,” which “the BitTorrent
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`protocol uses to identify and locate the desired file.” Id. at ¶ 10. In other words, the
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`“Info Hash” is not the actual motion picture that John Doe is accused of infringing, but
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`merely the means by which the BitTorrent program can find the motion picture among
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`the files of all of the computers connected to the BitTorrent network. Thus, even if Paige
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`were allowed to look within each .torrent file on the “imaged” hard drive for the “Hash”
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`sequences listed in Exhibit A to the Complaint, he would not discover any actual motion
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`pictures, but rather just the information needed for the BitTorrent system to find the
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`pornographic films, perhaps on other individuals’ devices. Given this clarification from
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`Strike 3, the Court is satisfied that no purpose would be served by permitting Strike 3 to
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`engage in any further discovery in this matter.
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`In support of his summary judgment motion, John Doe has provided the report
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`of his expert Michael Yasumoto, who holds a Master of Science degree in computer
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`science from the George Washington University. See Yasumoto Report at § II, Ex. 10 to
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`2 John Doe’s motion, see Supp. Reply at 3-4 (docket no. 185), to strike Paige’s declaration, as
`well as Strike 3’s supplemental response, is DENIED.
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`ORDER - 6
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`Edmondson Decl. (docket no. 175-10). In his report, Yasumoto summarized his analysis
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`as follows:
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`I created a forensically sound image of the hard drive listed in Table 1
`[i.e., Seagate Model ST3750528AS, Serial No. 9VP05TWX] . . . . Using
`XWF [X-Ways Forensics Version 19.8 SR3], I searched for all video files
`including deleted files recovered from unallocated space. I conducted file
`carving, which looks for signatures of certain file types to detect data that
`may be hidden inside another file or located in unallocated space such as
`deleted files. The smallest video file referenced in Exhibit A of the
`[Amended C]omplaint is approximately 187 MBs in size. . . . [Plaintiff’s
`videos] appear to have an introduction and concluding animation featuring
`the name of either Tushy, Vixen, or Blacked. I reviewed all recovered and
`existing video files over 100 MBs in size to determine if any of the video
`files were Plaintiff’s copyrighted works. None of the videos examined
`appear to be Plaintiff’s work based on content and the lack of any Tushy,
`Vixen, or Blacked animated titles. I also compared the SHA1 hash, which
`acts as a fingerprint for computer files, and none of the videos examined on
`defendant’s computer were a hash match for the videos listed in [Exhibit A
`to the Amended Complaint].3
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`Yasumoto Report at § IV (docket no. 175-10).4 Yasumoto’s opinion to a “reasonable
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`degree of scientific certainty” that the motion pictures listed in Exhibit A to the Amended
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`Complaint are not on the “imaged” hard drive, see id. at § V, is strong circumstantial
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`evidence that John Doe did not download (or upload) Strike 3’s copyrighted works.
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`3 Exhibit A to the Amended Complaint is similar to, but differs slightly from, Exhibit A to the
`Complaint. Exhibit A to the Amended Complaint, docket no. 43-1, contains 87 rows of “Hash”
`values and accompanying data, 80 of which appear to overlap with the information in Exhibit A
`to the Complaint, docket no. 1. For purposes of this Order, unless otherwise indicated, reference
`to “Exhibit A to the Complaint” means both versions of Exhibit A.
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`4 Strike 3 challenged Yasumoto’s approach because the hard drive at issue contains undisclosed
`data and Strike 3 had not had an opportunity to examine such data or cross-examine Yasumoto.
`See Pla.’s Resp. at 11-12 (docket no. 178). Strike 3 waived such objections by failing to take
`advantage of the discovery permitted by the Court or propose any alternatives to the restrictions
`imposed by the Court with regard to Strike 3’s expert’s analysis of the “imaged” hard drive.
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`ORDER - 7
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`Case 2:17-cv-01731-TSZ Document 188 Filed 02/03/20 Page 8 of 16
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`Discussion
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`A.
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`Summary Judgment Standard
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`The Court shall grant summary judgment if no genuine dispute of material fact
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`exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
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`56(a). The moving party bears the initial burden of demonstrating the absence of a
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`genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A
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`fact is material if it might affect the outcome of the suit under the governing law. See
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`Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To survive a motion for
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`summary judgment, the adverse party must present “affirmative evidence,” which “is to
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`be believed” and from which all “justifiable inferences” are to be favorably drawn. Id. at
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`255, 257. When the record, taken as a whole, could not, however, lead a rational trier of
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`fact to find for the non-moving party on matters as to which such party will bear the
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`burden of proof at trial, summary judgment is warranted. See Matsushita Elec. Indus.
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`Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); see also Celotex, 477 U.S. at 322.
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`B.
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`Jurisdiction Over Declaratory Judgment Counterclaim
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`In opposing John Doe’s motion for summary judgment, which seeks a declaration
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`of non-infringement, Strike 3 contends that the Court lacks jurisdiction to grant the
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`requested relief. Strike 3’s argument is without merit. This case does not involve the
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`type of preemptive litigation that frequently raises concerns about the existence of an
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`actual case or controversy. See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118
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`(2007); see also U.S. CONST. art. III, § 2. In such actions, which are often premised on a
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`cease-and-desist letter or similar threat received by the plaintiff from the defendant, the
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`ORDER - 8
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`question is whether, “under all of the circumstances,” a “substantial controversy” exists
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`“between parties having adverse legal interests, of sufficient immediacy and reality to
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`warrant the issuance of a declaratory judgment.” See MedImmune, 549 U.S. at 127.
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`Unlike in MedImmune, in this matter, Strike 3 did not merely threaten John Doe,
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`or render him reasonably apprehensive, about the prospect of a lawsuit. See MedImmune,
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`549 U.S. at 121-22; Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542,
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`1555-56 (9th Cir. 1989) (a declaratory judgment action presents a case or controversy “if
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`the plaintiff has a real and reasonable apprehension that he will be subject to liability if he
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`continues” his allegedly infringing actions). Instead, Strike 3 took the very “real” steps
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`of commencing this proceeding and seeking expedited discovery so that John Doe could
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`be served with summons and a copy of the Complaint. When John Doe asserted his
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`declaratory judgment counterclaim on March 8, 2018, docket no. 22, and when he filed
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`an amended version of his counterclaim on May 1, 2018, docket no. 32, Strike 3’s
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`copyright infringement claim was still pending, and the Court had Article III jurisdiction.
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`Strike 3’s subsequent dismissal of its copyright infringement claim did not render
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`moot John Doe’s request for declaratory relief. The case or controversy requirement
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`persists through all stages of litigation, LHF Prods., Inc. v. Kabala, 2018 WL 4053324
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`at *1 (D. Nev. Aug. 24, 2018); Crossbow Tech., Inc. v. YH Tech., 531 F. Supp. 2d 1117,
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`1120 (N.D. Cal. 2007), but this action is not one in which jurisdiction was lost after the
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`Complaint was filed. Unlike in LHF Productions, in which an alleged BitTorrent user’s
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`counterclaim for a declaration of non-infringement was dismissed as moot in light of the
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`plaintiff’s dismissal with prejudice of the underlying copyright infringement claim, in
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`ORDER - 9
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`this matter, Strike 3’s voluntary dismissal was without prejudice, see Notice (docket
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`no. 53), and in contrast to the plaintiff in Crossbow, Strike 3 has not provided any
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`covenant not to sue. Indeed, not only has Strike 3 preserved its ability to pursue further
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`litigation against John Doe, it has indicated that it will not consent to a declaration of
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`non-infringement unless John Doe is precluded from receiving attorney’s fees and costs
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`and Strike 3 is explicitly permitted to bring copyright infringement claims against John
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`Doe’s son. See Order at 2 n.3 (docket no. 167).
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`In essence, Strike 3 is attempting to thwart John Doe’s efforts to obtain attorney’s
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`fees and costs by, on the one hand, refusing to dismiss its Copyright Act claim with
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`prejudice and thereby denying John Doe “prevailing party” status, while on the other
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`hand, deploying its dismissal without prejudice as a jurisdictional shield against John
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`Doe’s declaratory judgment claim. The Court will not permit Strike 3 to use such
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`“gimmick designed to allow it an easy exit . . . [now that] discovery [has] reveal[ed] its
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`claims are meritless.” See Malibu Media, LLC v. John Doe Subscriber Assigned IP
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`Address 76.126.99.126, 2016 WL 3383758 at *2 (N.D. Cal. June 20, 2016) (denying a
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`copyright owner’s motion to dismiss a counterclaim for declaration of non-infringement,
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`observing that “[a]bsent defendant’s counterclaim, if events reveal that this case is
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`meritless, Malibu Media could voluntarily dismiss its affirmative claims without
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`prejudice under Rule 41(a)(2), seeking to avoid an award of attorney’s fees”).
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`C.
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`Declaration of Non-Infringement
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`Strike 3, not John Doe, bears the burden of proof with respect to infringement.
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`See Marya v. Warner/Chappell Music, Inc., 131 F. Supp. 3d 975, 984 (C.D. Cal. 2015)
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`ORDER - 10
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`(“there is no reason to relieve the alleged [copyright] owners . . . of the usual burden of
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`proof just because they are nominally the defendants in this declaratory judgment action”
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`(citing Medtronic, Inc. v. Mirowski Family Ventures, LLC, 571 U.S. 191 (2014))). A core
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`element of copyright infringement is a “copying” of the protected components of the
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`work. See Unicolors, Inc. v. Urban Outfitters, Inc., 853 F.3d 980, 984 (9th Cir. 2017);
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`Pasillas v. McDonald’s Corp., 927 F.2d 440, 442 (9th Cir. 1991). Strike 3 has provided
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`no evidence that John Doe copied any of Strike 3’s copyrighted motion pictures. At
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`most, Strike 3 has shown that an entity with access to the IP address 73.225.38.130
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`downloaded certain materials identified by the “Hash” sequences listed in Exhibit A to
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`the Complaint. Strike 3 cannot link John Doe to the activity associated with the
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`IP address, see Cobbler Nevada, LLC v. Gonzales, 901 F.3d 1142 (9th Cir. 2018),5 and it
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`has now abandoned any assertion that the items allegedly transferred over the BitTorrent
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`system were themselves copyrighted motion pictures or viewable pieces thereof, as
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`opposed to simply non-copyrightable data that may be used to find certain motion
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`5 As observed by the Honorable Royce C. Lamberth, the method of identifying copyright
`infringers by IP address is “famously flawed” for a variety of reasons, including IP address
`spoofing, the existence of unsecured routers, the ability of malware to crack passwords or open
`backdoors, the sharing of IP addresses among family members, roommates, guests, neighbors,
`and others, and the random assignment of IP addresses to a general location if a more specific
`one cannot be identified by geolocation services. See Strike 3 Holdings, LLC v. Doe, 351
`F. Supp. 3d 160, 162 (D.D.C. 2018). Moreover, dynamic IP addresses might be reassigned to
`many different individuals during a short timeframe, and these frequent changes create a
`significant chance of misidentification. See Strike 3 Holdings, LLC v. Doe, 2019 WL 5446239
`at *11 (D.N.J. Oct. 24, 2019). In this matter, Exhibit A to the Complaint lists dates of BitTorrent
`activity spanning from May 10, 2017, through December 1, 2017, see docket no. 43-1, but the
`only time for which the ISP provided subscriber information in response to Strike 3’s expedited
`discovery request was September 5, 2017, at 10:40:33 GMT. See Comcast Letter (docket
`no. 11). Strike 3’s assertion that John Doe was the subscriber for IP address 73.225.38.130 at
`any other moment is entirely unsupported by the record.
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`ORDER - 11
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`Case 2:17-cv-01731-TSZ Document 188 Filed 02/03/20 Page 12 of 16
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`pictures and/or their constituent parts within the BitTorrent network. Consistent with
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`Strike 3’s lack of proof of copying, John Doe’s expert has indicated that John Doe’s
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`computer does not contain any of the motion pictures described in Exhibit A to the
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`Complaint. No genuine dispute of material fact exists, and John Doe is entitled to
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`judgment as a matter of law. John Doe’s motion for summary judgment is GRANTED,
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`and a declaratory judgment of non-infringement will be entered.
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`D.
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`Attorney’s Fees and Costs
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`Under the Copyright Act, attorney’s fees are not awarded to the prevailing party
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`automatically or as a matter of course. See Killer Joe Nevada, LLC v. Does 1-20, 807
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`F.3d 908, 911 (8th Cir. 2015). Rather, the Court must exercise its discretion in equity,
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`considering various non-exclusive factors, including whether the losing party’s position
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`was frivolous or objectively unreasonable, the losing party’s motivations, the need in
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`particular circumstances to compensate or deter, and the purposes of the Copyright Act.
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`See id.; see also Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994); Palladium
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`Music, Inc. v. EatSleepMusic, Inc., 398 F.3d 1193, 1200-01 (10th Cir. 2005). These
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`guideposts indicate that attorney’s fees are warranted in this matter.
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`A different result might have been appropriate if, back in August 2018, Strike 3
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`had dismissed its copyright infringement claim with prejudice and shortly thereafter
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`sought dismissal of John Doe’s declaratory judgment counterclaim as moot. Instead,
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`Strike 3 attempted to preserve its ability to pursue further litigation against John Doe
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`while aggressively seeking evidence against him and his son in the guise of defending
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`against John Doe’s now defunct abuse-of-process counterclaim. Months after the
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`ORDER - 12
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`Case 2:17-cv-01731-TSZ Document 188 Filed 02/03/20 Page 13 of 16
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`abuse-of-process counterclaim had been dismissed by the Court, see Order (docket
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`no. 167), and over 14 months after dismissing its own copyright infringement claim
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`without prejudice, Strike 3 revealed a level of uncertainty about the factual allegations of
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`its Complaint and Amended Complaint that should have inhibited it from filing this
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`lawsuit in the first place. Cf. Strike 3 Holdings, 2019 WL 5446239 at *10 (observing that
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`Strike 3 “resort[ed] to making unequivocal statement of alleged facts that it does not
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`know to be true in order to obtain expedited discovery” and describing such behavior as
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`“troublesome”). This new information weighs in favor of awarding attorney’s fees to
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`John Doe.
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`Many courts have articulated concerns about the motivations involved in pursuing
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`these types of cases, which appear to be extortive, forcing individuals, who would be
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`embarrassed by allegations that they have been visiting pornographic websites, to pay
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`nuisance-value amounts to keep their names out of publicly-available documents. See
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`Malibu Media, 2016 WL 3383758 at *2-*3. The pattern of filing numerous suits, and
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`then dismissing those in which the defendant does not quickly agree to settle, manifests a
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`lack of intent to bring these matters to trial, and reinforces the sense that the plaintiffs are
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`simply in the “shakedown” business. Id. In the nine actions filed by Strike 3 in this
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`district during a two-day period, this case is the only one that advanced past the pleading
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`stage; all other matters were voluntarily dismissed by Strike 3. See Order at 2 n.2 (docket
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`no. 167) (indicating that five of the suits settled, one was dismissed for unknown reasons,
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`and two others were not pursued because service could not be effected or default could
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`ORDER - 13
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`Case 2:17-cv-01731-TSZ Document 188 Filed 02/03/20 Page 14 of 16
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`not be secured). To deny John Doe’s request for attorney’s fees, as Strike 3 proposes,
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`would improperly reward Strike 3 for adhering to its suspicious litigation script.6
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`The Ninth Circuit’s decision in Cobbler Nevada appears to have stemmed the tide
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`of BitTorrent litigation, and the Court does not view deterrence as a basis for awarding
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`attorney’s fees in this matter. Compensation, however, is a relevant factor, as is the
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`policy underlying the Copyright Act of encouraging defendants to advance and litigate
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`meritorious copyright defenses. See Fogerty, 510 U.S. at 527. In outlining the services
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`for which John Doe is requesting attorney’s fees, his lawyers have carefully segregated
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`between the successful and unsuccessful defenses, counterclaims, and motions, and the
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`amount sought is narrowly tailored to the matters on which John Doe prevailed.
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`For example, Adrienne D. McEntee of Terrell Marshall Law Group PLLC has not
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`included in her computations any time spent on the failed abuse-of-process counterclaim,
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`see McEntee Decl. at ¶ 10 (docket no. 176-2), and she has even excluded the billings
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`related to John Doe’s current motion for summary judgment, see id. at ¶ 11. Likewise,
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`J. Curtis Edmondson of Edmondson IP Law has significantly curtailed the amount
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`6 Strike 3 has been described as a “copyright troll.” Strike 3 Holdings, 351 F. Supp. 3d at 161.
`A copyright troll’s success derives “not from the Copyright Act, but from the law of large
`numbers.” Id. at 162. Nationwide, during the thirteen months from October 2017 through
`November 2018, Strike 3 filed 1,849 cases similar to this one. See id. In 2015, copyright trolls
`accounted for 58% of the federal copyright docket. Id. The copyright troll’s playbook outlines
`the following strategy: “file a deluge of complaints; ask the court to compel disclosure of the
`account holders; settle as many claims as possible; abandon the rest.” See id. (citing Matthew
`Sag & Jake Haskell, Defense Against the Dark Arts of Copyright Trolling, 103 IOWA L. REV.
`571, 575-80 (2018)). It teaches that cases should be dropped “at the first sign of resistance” to
`stay “one step ahead of any coordinated defense” or, metaphorically speaking, that when “a Billy
`Goat Gruff moves to confront a copyright troll in court, the troll [should] cut[] and run[] back
`under its bridge.” See id.
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`ORDER - 14
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`Case 2:17-cv-01731-TSZ Document 188 Filed 02/03/20 Page 15 of 16
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`requested on behalf of John Doe by not including any time billed after August 23, 2018,
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`when Strike 3 dismissed its copyright infringement claim, and by applying a 50%
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`reduction to all other fees. See Edmondson Decl. at ¶¶ 19 & 21. Having reviewed the
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`materials submitted by John Doe, the Court concludes that the requested hourly rates are
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`commensurate with the amounts charged by lawyers of similar skill in the local legal
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`community for comparable work, and that the following attorney’s fees are reasonable
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`under all of the circumstances:
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`Attorney’s Fees
`Terrell Marshall Law Group PLLC
`Edmondson IP Law
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`TOTAL:
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` $ 13,615.00
` $ 26,886.63
` $ 40,501.63
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`With respect to costs, the Terrell Marshall Law Group PLLC seeks $300 in court
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`reporter fees and $2,358.20 for transcripts, for a total of $2,658.20. These costs are
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`consistent with 28 U.S.C. § 1920 and will be awarded. Edmondson IP Law has itemized
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`costs totaling $11,226.60, but asks for only 50% of that sum. Strike 3 objects to inclusion
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`of costs for DVDs, expert-related fees, and videographer expenses. Excluding those
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`items results in costs of $9,234.85, half of which will be awarded, or $4,617.43. The
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`total amount of costs to be taxed is $7,275.63.
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`Conclusion
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`For the foregoing reasons, the Court ORDERS:
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`(1) Defendant’s motion for summary judgment, docket no. 174, is GRANTED;
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`(2) Defendant is entitled to judgment on his first counterclaim under 28 U.S.C.
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`§ 2201 for a declaration of non-infringement, see docket no. 64; and
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`ORDER - 15
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`Case 2:17-cv-01731-TSZ Document 188 Filed 02/03/20 Page 16 of 16
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`(3)
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`The Clerk is directed to enter judgment consistent with this Order, as well
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`as with the Minute Order entered October 24, 2018, docket no. 58, the Order entered
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`July 8, 2019, docket no. 167, and Strike 3’s Notice of Voluntary Dismissal, docket
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`no. 53, to send a copy of the Judgment and this Order to all counsel of record, and to
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`CLOSE this case.
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`IT IS SO ORDERED.
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`Dated this 31st day of January, 2020.
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`A
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`Thomas S. Zilly
`United