Welcome

Big Law Lawyer Turned Porn IP Enforcer Loses After Rare Defense

May 10, 2021, 8:23 PM

A pornographer represented by a former Fox Rothschild partner paid nearly $48,000 in opposing counsel fees and costs after a defendant spent years fighting the claim he’d stolen dozens of videos.

The partner, Lincoln Bandlow, abruptly departed his old law firm, one of the 100 largest in the country, in May 2019 after he filed hundreds of lawsuits on behalf of porn production company Strike 3 Holdings LLC that alleged rampant theft of its movies by internet users.

The type of mass copyright infringement litigation pursued by Bandlow and Strike 3 has gained a reputation as “copyright trolling,” in which the lawyers take advantage of the high cost to defend lawsuits and the embarrassment of being named as stealing porn to secure quick settlements. In cases separate from Strike 3’s, two lawyers who pursued a fraudulent copyright infringement campaign on behalf of a porn production company they surreptitiously created are now serving federal prison sentences.

Much of Bandlow’s work results in private settlements before a formal complaint is filed, but he has spent the past three years litigating a case in Washington federal court. That’s because J. Curtis Edmondson, a Hillsboro, Ore.-based lawyer, began vigorously defending one of the complaints.

Now, Edmondson and his co-counsel at Terrell Marshall Law Group have been paid more than $47,750 for their work on the case, according to a filing from last week.

U.S. District Judge Thomas Zilly in January wrote the litigation showed Strike 3 was uncertain enough about its factual allegations in the case that it shouldn’t have been filed.

“Many courts have articulated concerns about the motivations involved in pursuing these types of cases, which appear to be extortive, forcing individuals, who would be embarrassed by allegations that they have been visiting pornographic websites, to pay nuisance-value amounts to keep their names out of publicly-available documents,” Zilly wrote.

U.S. District Judge Royce Lamberth of the District of Columbia called the cases in a 2018 opinion “a high-tech shakedown.”

“Strike 3 floods this courthouse (and others around the country) with lawsuits smacking of extortion,” Lamberth wrote. “It treats this court not as a citadel of justice, but as an ATM.”

Shortly after Bandlow left Fox Rothschild, other lawyers from that firm filed motions removing themselves from the cases. Bandlow now practices at an eponymous law firm. He did not immediately return a request for comment on the Washington case.

The defendant in the Washington case was not named, but he was identified as a septuagenarian retired police officer who argued he’d never downloaded the videos. Bandlow, during an oral argument in a federal appeal in March, said there was “100% chance” the videos were downloaded, likely by the former police officer’s son.

The fee ruling came after Strike 3 dismissed its complaint, however it did so without prejudice. That opened the door for the defendant, who argued it could have been sued again at any point, to seek lawyers’ fees.

During the oral argument in March, Bandlow said he’d offered a covenant not to sue the defendant again, which could have prevented the request for fees. The appeals court ruled Bandlow’s failure to dismiss the case with prejudice meant he could have brought another lawsuit against the defendant, keeping the case alive for the defendant’s effort to seek lawyer fees.

In an interview with Bloomberg Law on Monday, Edmondson said the discovery in the case showed Strike 3 has flimsy evidence to bring its claims, and that can have a high price when the wrong defendant is accused of stealing.

“The most important part is there is an assumption that the software is accurate,” Edmondson said. “And our analysis of the data generated by the software does not indicate it is accurate. What’s unfortunate is the courts presume the accuracy of the software at the pleading stage.”

Strike 3 Holdings maintains an active copyright enforcement campaign, although its federal court efforts have slowed down. It now starts many of its cases in Miami-Dade County court, where it asks a judge to force internet providers to turn over the name, address, and contact information of users it believes have stolen its works, identified through software that tracks IP addresses.

That information is used to send settlement letters to people who’ve allegedly stolen the company’s films, which are distributed under brands such as “Tushy,” “Vixen,” and “Blacked.”

Edmondson, who is currently litigating other cases against Bandlow, said he is aware of many would-be defendants who pay settlements despite never downloading the movies.

“Certainly the software Strike 3 relies on has identified people who’ve infringed. But it has also identified a fair amount of people who have not infringed,” Edmondson said. “There aren’t enough of me to represent every false positive caught up in this. And until Congress either provides a greater remedy to those improperly named, or they remove statutory damages, this problem will continue.”

The case is Strike 3 Holdings, LLC v. John Doe, W.D. Wash., No.17-01731, satisfaction of judgment submitted 5/7/21.

To contact the reporter on this story: Roy Strom in Chicago at rstrom@bloomberglaw.com

To contact the editors responsible for this story: Rebekah Mintzer at rmintzer@bloomberglaw.com; Chris Opfer at copfer@bloomberglaw.com

To read more articles log in.

Learn more about a Bloomberg Law subscription.