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The identity defense, which is the main event
Strike 3 must prove that you personally reproduced or distributed its works. It cannot prove that with an IP address, because an IP address identifies a connection, not a human being. Every other defense on this page is secondary to that one.
The Ninth Circuit went on to hold that a plaintiff must allege something more to create a reasonable inference that the subscriber is also the infringer, and that a subscriber's failure to take affirmative steps to police a connection cannot support contributory liability. Courts outside the Ninth Circuit have applied comparable reasoning under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Magistrate Judge Brown reached the same practical conclusion years earlier in In re BitTorrent Adult Film Copyright Infringement Cases, 296 F.R.D. 80 (E.D.N.Y. 2012).
What builds the identity defense
- Other people with access. Spouse, children, adult children home from school, roommates, houseguests, short term rental tenants, employees, contractors, caregivers. Each is a person who could have been at the keyboard and whom the plaintiff must exclude.
- Network security posture. An open network, default router credentials, WEP or an old shared passphrase, a guest network, or an access point reaching neighboring units all broaden the universe of possible users.
- Physical absence. Travel records, work schedules, calendar entries, and payment records that place you elsewhere on the dates and times on Exhibit A. UTC timestamps must be converted to local time carefully, and errors in that conversion cut both ways.
- Device inventory. What devices existed on the network, what operating systems they ran, and whether any of them was even capable of running the client software alleged.
- ISP assignment records. Residential IP assignments are dynamic. Records of what address was assigned to your account at each recorded moment are obtainable and occasionally decisive.
Technical and evidentiary defenses
- Fragments versus works. The complaint alleges that the plaintiff's system downloaded a piece or pieces of a file. Whether the exchange of small fragments constitutes reproduction or distribution of a copyrighted work within 17 U.S.C. section 106, and whether a fragment contains protected expression at all, is a legitimate and underlitigated question.
- Do the PCAP files exist for every transaction? The pleading references packet captures. Whether a capture was made and preserved for each line of Exhibit A, and what each one actually shows, is a proper and pointed subject of discovery.
- Hash matching proves file identity, not conduct. An info hash establishes that a torrent corresponds to a particular file. It says nothing about who initiated the transfer or whether the transfer completed.
- Methodology and validation of the monitoring systems. VXN Scan and the Cross Reference Tool are proprietary and operated by the plaintiff itself rather than by an independent vendor. How they were validated, their error rates, their clock synchronization, and their chain of custody are all fair game.
- Geolocation is probabilistic. Commercial geolocation products state accuracy in confidence terms. They are not forensic instruments, and the D.C. Circuit noted the limits of relying on them in AF Holdings, LLC v. Does 1-1058, 752 F.3d 990 (D.C. Cir. 2014).
- Chain of title and registration validity. Ownership must run cleanly from the production entity to the named plaintiff for each asserted work.
Section 412 and the remedy problem
This is the defense most often overlooked by defendants and by inexperienced counsel, and it goes directly to money.
Under 17 U.S.C. section 412, no award of statutory damages or of attorney's fees may be made for (1) infringement of an unpublished work commenced before the effective date of its registration, or (2) infringement of a published work commenced after first publication and before the effective date of registration, unless registration was made within three months after first publication.
Strike 3's economic model depends on statutory damages and on the prospect of a fee award. Actual damages for the unauthorized download of a subscription film are, realistically, the price of a subscription. Every work on Exhibit A that falls outside section 412 is a work for which the plaintiff must prove actual damages, which is a fundamentally different and far less attractive proposition. Exhibit A conveniently lists the publication date, the registration date, and the registration number for every work, which is exactly the data needed to run this analysis.
Exhibit A and Rule 404(b)
Strike 3 complaints routinely include allegations that the same IP address was observed obtaining other content beyond the asserted works, offered to suggest a pattern of behavior. There is a rule directly on point. Fed. R. Evid. 404(b)(1) prohibits evidence of other acts to prove that a person acted in accordance with a character trait on a particular occasion, though Rule 404(b)(2) permits such evidence for a non-propensity purpose such as identity, motive, or opportunity. Fed. R. Evid. 403 permits exclusion where probative value is substantially outweighed by unfair prejudice, and in this subject matter the prejudice is obvious.
Identity is one of the permitted purposes under Rule 404(b)(2), so the plaintiff will argue that the other-acts material comes in on that theory. Whether it genuinely goes to identity or is simply propensity in different clothing, and whether Rule 403 excludes it in any event, is a fight worth having in a motion in limine rather than conceding by silence.
Willfulness and innocent infringement
Strike 3 pleads willfulness in every complaint, because 17 U.S.C. section 504(c)(2) permits the court to increase statutory damages to as much as $150,000 per work for willful infringement. Willfulness requires knowledge that the conduct constituted infringement or reckless disregard of the copyright owner's rights. Access to an internet connection is not knowledge, and a routine allegation is not proof.
The statute also runs the other way. Where the infringer sustains the burden of proving, and the court finds, that the infringer was not aware and had no reason to believe that the acts constituted infringement, the court may reduce statutory damages to as little as $200 per work.
The innocent infringement reduction is limited by 17 U.S.C. section 401(d), which forecloses an innocent infringement defense in mitigation of actual or statutory damages where a proper copyright notice appeared on the published copies to which the infringer had access. It is a real defense, it is fact specific, and it is not the automatic escape hatch that some websites present it as. Its practical significance in these cases is usually as a factor in negotiation and in the court's exercise of discretion within the statutory range, rather than as a standalone answer to the claim.
Defenses that sound good and usually are not
| The argument | The problem with it |
|---|---|
| "It is fair use, I only watched it." | Fair use under 17 U.S.C. section 107 is a fact intensive affirmative defense weighing four statutory factors. Consuming an entire commercial entertainment work for personal enjoyment, with no transformative purpose and direct market substitution, is close to the paradigm case of unfair use. It is not a serious defense here on ordinary facts. |
| "The content is obscene, so it cannot be protected." | Courts have consistently declined to create an obscenity exception to copyrightability, and the D.C. Circuit has held that the nature of the works is irrelevant even at the discovery stage. Strike 3 Holdings, LLC v. Doe, 964 F.3d 1203 (D.C. Cir. 2020). |
| "They are a copyright troll, so the case should be dismissed." | Judicial criticism of the litigation model is real and useful context, but it is not a cause of action or a defense. It informs how a court exercises discretion. It does not defeat a claim. |
| "I used a VPN, so they cannot prove anything." | Depending on the facts, this can cut against you. It may be argued as evidence of concealment. It is also a technical fact your lawyer needs to know early rather than discover at your deposition. |
| "I deleted everything, so there is no evidence." | This is not a defense, it is potential spoliation. It can produce an adverse inference instruction or sanctions, and it converts a winnable case into an unwinnable one. |
| "I never agreed to anything, so there is no contract." | Copyright infringement is a statutory tort. No agreement is required for liability. |
Which of these applies to your facts?
The answer requires the complaint, Exhibit A, the registration data, and a candid privileged conversation about your household and your network. Send us the file and we will tell you where the plaintiff's proof is strong and where it is not.
How a defense is actually built
- Read the file completely. Complaint, Exhibit A, the early discovery motion and its supporting declarations, the order granting it, the docket, and the assigned judge's history with this plaintiff.
- Run the section 412 analysis. Compare each work's publication and registration dates against the alleged infringement dates. Identify every work for which statutory damages and fees are unavailable.
- Map the household and the network. Every person with access, the security posture of the router, the device inventory, and any period of absence corresponding to entries on Exhibit A.
- Test the technical proof in discovery. Demand the PCAP files, the monitoring system documentation and validation records, clock synchronization data, and the complete unredacted Exhibit A.
- Obtain the ISP's own records. Independent confirmation of address assignment at each relevant moment, which either corroborates or undermines the plaintiff's foundational premise.
- Choose the vehicle. Rule 12(b)(6) where the pleading is thin, a targeted discovery campaign followed by summary judgment where the plaintiff cannot bridge the identity gap, or a negotiated resolution from a position of demonstrated strength.
- Preserve the fee claim. Where the case is defended successfully, 17 U.S.C. section 505 and Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197 (2016), put the plaintiff's own exposure on the table.