STRIKE 3 HOLDINGS, LLC v. JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 108.11.13.209

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

STRIKE 3 HOLDINGS, LLC,

1:21-cv-17860-NLH-MJS

Plaintiff,

OPINION

v.

JOHN DOE subscriber assigned

IP address 108.11.13.209,

Defendant.

APPEARANCES:

JOHN C. ATKIN

THE ATKIN FIRM, LLC

55 MADISON AVENUE, SUITE 400

MORRISTOWN, NJ 07960

On behalf of Plaintiff

FLANN LIPPINCOTT

LIPPINCOTT IP LLC

475 WALL ST.

PRINCETON, NJ 08540

On behalf of Defendant

HILLMAN, District Judge

This matter has come before the Court by way of a joint

motion to seal certain materials pursuant to Local Civil Rule

5.3, filed on April 21, 2022. (ECF No. 21). This Court notes

that Strike 3 Holdings, LLC (“Plaintiff”) and John Doe

subscriber assigned IP address 108.11.13.209 (“Defendant”)

(collectively, the “Parties”) have “amicably resolved this

matter,” and once an entry on this Motion has been made,

Plaintiff has agreed to dismiss its claim with prejudice. (ECF

No. 21 at 2-3). This Court decides this matter pursuant to

Federal Rules of Civil Procedure 78(b), and after considering

the Parties’ submission, for the reasons that follow, Parties’

motion to seal will be denied.

BACKGROUND

This is one of several cases filed by Plaintiff as the

purported owner of copyrights in “adult motion pictures,”

whereby Plaintiff alleges copyright infringement. Strike 3

Holdings, LLC v. Doe, No. 20-14321, 2021 U.S. Dist. LEXIS

254194, at *9-10 (D.N.J. Dec. 22, 2021). Plaintiff filed their

complaint in this matter on September 30, 2021, and after

various extensions and motions related to discovery, Plaintiff

filed their second amended complaint on March 2, 2022, alleging

that Defendant downloaded 24 copyrighted works without

authorization via BitTorrent protocol and distributed them to

others. (ECF No. 12 at 2). Plaintiff proceeded through

discovery under a protective order pursuant to Federal Rule of

Civil Procedure 26(f), which allowed Plaintiff to apply the John

Doe pseudonym to the caption and to file certain documents with

redactions. (ECF No. 5 at 4-5). Now, at the close of this

case, the Parties have filed a joint motion to seal certain

materials pursuant to Local Civil Rule 5.3. (ECF No. 21).

DISCUSSION

I. Jurisdiction

This Court has subject matter jurisdiction over the case

pursuant to 28 U.S.C. §§ 1331 and 1338.

II. Local Civil Rule 5.3

Local Civil Rule 5.3 has several requirements that the

Parties must address for a court in this District to restrict

public access to court documents:

(a) the nature of materials or the proceedings

at issue;

(b) the legitimate private or public interest

which warrants the relief sought;

(c) the clearly defined and serious injury that

would result of the relief sought is not

granted;

(d) why a less restrictive alternative to the

relief sought is not available;

(e) any prior order sealing the same materials

in the pending action; and

(f) the identity of any party or nonparty known

to be objecting to the sealing request.

L. Civ. R. 5.3(c)(2). The party moving to seal must submit a

proposed order that contains proposed findings of fact and

conclusions of law. Id.

The Court notes that while litigants have an interest in

privacy, the public also has a right to obtain information about

judicial proceedings. In re Avandia Mktg., Sales Practices &

Prods. Liab. Litig., 924 F.3d 662, 670-74 (3d Cir. 2019). When

discovery materials are filed as court documents, a more

rigorous common law right of access is applied. Id. at 670.

“In addition to recognizing fewer reasons to justify the sealing

of court records, the public right of access — unlike a Rule 26

inquiry — begins with a presumption in favor of public access.”

Id. To rebut the presumption of public access, the party

seeking confidentiality must demonstrate "good cause" by

establishing that disclosure will cause a "'clearly defined and

serious injury to the party seeking closure.'" Boehringer

Ingelheim Pharma GmbH & Co. v. Mylan Pharms., No. 14-4727, 2015

WL 4715307, at *2 (D.N.J. Aug. 7, 2015) (quoting Publicker

Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984)).

"'Broad allegations of harm, unsubstantiated by specific

examples or articulated reasoning,' do not support a good cause

showing." Id. (quoting Cipollone v. Liggett Group, Inc., 785

F.2d 1108, 1121 (3d Cir. 1986), cert. denied, 484 U.S.

976(1987)).

III. Analysis

The parties have filed a joint motion to seal certain

materials pursuant to Local Civil Rule 5.3 to permanently

restrict public access to portions of the amended complaint,

amended civil cover sheet, summons returned executed, and a

declaration of John Doe, which are currently redacted pursuant

to the protective order granted during discovery. (ECF No. 21

at 2; ECF No. 5).

The Court has reviewed the documents that are the subject

of the motion to seal and concludes that sealing is not

warranted because the Court finds that the Parties did not fully

satisfy the factors set forth in L. Civ. R. 5.3(c).

The Parties provided a declaration, index, and a proposed

order giving an overview of the nature of materials and the

proceedings at issue: to seal the Defendant’s name and address

in selected documents because the nature of the proceedings

involves adult material. (ECF No. 21). The request to seal is

the least restrictive method to keep the Defendant’s identity

anonymous, as it would only redact Defendant’s name and address,

leaving the rest of the documents open to the public eye. (Id.

at 4-8).

However, there is a “strong presumption” of full openness

of judicial records, a common law right of access that is

“beyond dispute.” Miller v. Indiana Hosp., 16 F.3d 549, 551 (3d

Cir. 1994) (citing Littlejohn v. Bic Corp., 851 F.2d 673, 677-78

(3d Cir. 1988)); United States v. Criden, 648 F.2d 814, 819 (3d

Cir. 1981) (Criden I)). “The party seeking to seal any part of

a judicial record bears a heavy burden of showing that

disclosure of the record will ‘work a clearly defined and

serious injury to the party seeking closure.’” Miller, 16 F.3d

at 551 (citing Publicker Indus., Inc. v. Cohen, 733 F.2d 1059,

1071 (3d Cir. 1984)). While this presumption of openness is

rebuttable and not absolute, the injury must be serious enough

to overcome considerations related to maintaining the public’s

confidence in the judicial system. Goldstein v. Forbes (In Re

Cendant Corp.), 260 F.3d 183, 192 (3d Cir. 2001) (internal

citations and quotations omitted). Specificity of the injury to

be prevented is essential, and broad allegations of harm are

insufficient. Id. at 194.

Parties describe the basis for sealing as: the potential of

Defendant’s present and prospective employers discovering

Defendant’s involvement in this case resulting in adverse

employment consequences, his reputation becoming irreparably

tarnished, and financial losses. (ECF No. 21 at 4-8). While

embarrassment is a consideration in favor of sealing, courts

have denied motions to seal based solely on embarrassing

information or general financial records. See Gratz College v.

Synergis Educ. Inc., No. 14-06966, 2015 U.S. Dist. LEXIS 173148,

at *7-8 (E.D. Pa. Dec. 30, 2015) (citing e.g., Pansy v. Borough

of Stroudsburg, 23 F.3d 772, 787 (3d Cir. 1994) ("While

preventing embarrassment may be a factor satisfying the 'good

cause' standard, an applicant for a protective order whose chief

concern is embarrassment must demonstrate that the embarrassment

will be particularly serious."); Rose v. Rothrock, No. 08-3884,

2009 WL 1175614, at *8 (E.D. Pa. Apr. 29, 2009) ("If mere

embarrassment were enough, countless pleadings as well as other

judicial records would be kept from public view."). In this

case, the Parties have only alleged the possibility of harm if

the identity of the Defendant is somehow retrieved from court

records and disseminated by the press. (ECF No. 21 at 4-8).

The generality of this harm is not sufficient to overcome the

presumption of access to court records. See Rossi v.

Schlarbaum, No. 07-3792, 2008 WL 222323, at *3 (E.D. Pa. Jan.

25, 2008).

This Court notes that the same materials in the pending

motion have been filed in their redacted form per a protective

order entered during expedited discovery. (ECF No. 5). Though

these documents have been subject to a protective order, it does

not necessarily mean that the documents automatically qualify to

remain sealed. Brooks v. Wal-Mart Stores, Inc., No. 18-1428,

2020 WL 1969937, at *7 (D.N.J. Apr. 24, 2020). In this matter,

Plaintiff was allowed to proceed with initial discovery under a

protective order because of the risk of misidentification that

may occur (in relation to the link that may or may not exist

between a copyright infringer and the IP address that is used to

perform that infringement). (ECF No. 5 at 4; see also Strike 3

Holdings, LLC v. Doe, Nos. 18-2674, 2020 WL 3567282, at *1-3, 10

(D.N.J. Jun. 30, 2020) (discussing the mechanics of tracking an

infringer who uses peer-to-peer filing networks and the concern

regarding misidentification).

Those conditions that warranted the temporary restriction

of public access are no longer as compelling now that the

Defendant has been identified and is part of this action. (ECF

No. 21).1 In balancing the potential injury to the Defendant if

their information becomes publicly available versus the public

interest in access to judicial proceedings, the Court finds that

the public interest outweighs Defendant’s privacy interest.

The Court makes this one final observation. Some courts

have reactively negatively to infringement actions like this one

brought both in this District and elsewhere by this Plaintiff.

One court has even gone so far as to describe them as an

extortion racket by a so-called copyright troll seeking to

compel settlements through the threat of exposing in a public

forum a Defendant’s downloading of pornographic materials.

Strike 3 Holdings, LLC v. Doe, 351 F. Supp. 3d 160 (D.C. Cir.

2018). This Court has taken a different tack, allowing these

cases to proceed under what it believes should be a non-

controversial theory: this Court does not have the authority to

act as a gatekeeper barring otherwise valid copyright owners

access to the courts simply because of the distasteful content

of their intellectual property or how it was acquired. Strike 3

1 The Court notes that, while Defendant has been identified by

Plaintiff as the individual allegedly responsible for the

copyright infringement at issue, Defendant denies these

allegations. (ECF No. 21 at 9).

Holdings, LLC v. Doe, 1:18-cv-2674, 2020 WL 3567282, at *10-11

(D.N.J. June 30, 2020). Such policy matters on the breadth of

copyright protection should be left to the legislative branch in

a manner consistent with the Constitutional directive to provide

a limited monopoly to the creative industries of society.

But this does not mean that those who have criticized these

cases have not raised legitimate concerns; concerns highlighted

by the motion now before this Court. If this Court were to seal

the materials identifying the Defendant now upon a joint

application of the parties, after the services of this Court

were used to identify a potential infringer and a settlement

reached, it would not be unreasonable for someone to have the

impression that some form of extortion is indeed part of the

game here and even worse that the Court harbors and facilitates

it.

To be clear, the Court does not suggest that Plaintiff or

its counsel have acted improperly, and certainly one cannot

fault the Defendant for wishing to remain anonymous. But this

Court should take no action that lends itself to the impression

that this Court fosters, promotes or shelters a dispute

resolution mechanism that pegs the price for that anonymity as

the amount of damages sought by the Plaintiff. Plaintiff may

bring these actions and Defendants, if identified, may defend

them but the process of this public taxpayer-funded court should

be as transparent and open for all the world to see as the law

provides. Accordingly, in this procedural posture, the Court

will deny the Parties’ joint motion to seal.

CONCLUSION

This Court does not find sufficient basis to seal per the

Parties’ joint motion. This Court has repeatedly emphasized the

public interest in disclosure of materials filed on this Court’s

docket, which often outweighs private interests in

confidentiality, as it does in this case. The Court is funded

by the public and does not sit, in general, to resolve private

disputes in secret. Thus, the Parties’ joint motion to seal

certain materials will therefore be denied.

An appropriate Order will be entered.

Date: June 23, 2022 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.