Strike 3 Holdings v. John Doe subscriber assigned IP address 73.202.135.235
- Richard Seeborg
- 3:24-cv-03253
- U.S. District Court · Northern District of California
- 5
In Strike 3 Holdings v. John Doe, Judge Seeborg allowed a subpoena to identify the subscriber while requiring notice and privacy protections.
Strike 3 Holdings may seek the identity and address of the internet subscriber associated with IP address 73.202.135.235. The unknown subscriber receives notice and protections allowing anonymous participation, restricting disclosure of identifying information, and requiring the information to remain under seal.
What happened
In Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 73.202.135.235, Strike 3 alleged that the unknown subscriber illegally distributed its copyrighted pornographic films. Strike 3 asked to subpoena Comcast Cable Communications, LLC, the internet service provider connected to the identified internet address, for the subscriber’s name and address.
The court found good cause for early discovery before the usual conference between the parties. It concluded that Strike 3 had identified the unknown defendant sufficiently, described its efforts to locate the person, shown that the case could withstand dismissal, and shown that the subpoena was reasonably likely to provide information needed for service.
The court granted leave to issue the subpoena. Judge Richard Seeborg required Strike 3 to notify the defendant that they may proceed anonymously, restricted use and public disclosure of the identifying information, and required references to the defendant’s identity to be redacted and filed under seal until further order.
The detailed version
- Strike 3 Holdings v. John Doe subscriber assigned IP address 73.202.135.235 · No. 3:24-cv-03253
- Richard Seeborg
- June 25, 2024
Background
Strike 3 Holdings, LLC alleged that the unknown defendant illegally distributed its copyrighted pornographic films. Strike 3 had identified an internet protocol address, 73.202.135.235, but only the associated internet service provider could determine which account holder had been assigned that address. Strike 3 identified Comcast Cable Communications, LLC as the relevant provider and sought permission to serve a third-party subpoena. A third-party subpoena is a court-authorized demand for information from someone who is not a party to the lawsuit.
The court noted criticism of Strike 3 as a so-called “copyright troll” and allegations that it uses lawsuits and subscriber subpoenas to pressure people to settle. The court nevertheless stated that pornography is entitled to copyright protection and that Strike 3 represented that it pursued strong cases involving illegal downloading and large-scale unauthorized distribution. Strike 3 also stated that it welcomed safeguards allowing a defendant to proceed anonymously.
Legal standard
Federal Rule of Civil Procedure 26(d) permits a court to authorize discovery before the parties’ usual Rule 26(f) conference when doing so serves convenience and the interests of justice. Courts in the Ninth Circuit generally require “good cause” for this early discovery.
For a request to identify an unknown defendant, courts examine whether the plaintiff:
- Identified the unknown defendant specifically enough for the court to determine that the person is a real person who may be sued in federal court;
- Described the steps taken to locate and identify the person;
- Showed that the lawsuit could withstand a motion to dismiss; and
- Showed that the requested discovery was reasonably likely to produce information allowing service of process.
Ruling
The court found that Strike 3 established good cause and granted its request for leave to serve a third-party subpoena. Strike 3 may serve Comcast with a Rule 45 subpoena seeking the true name and address of the defendant to whom Comcast assigned the internet address listed in Exhibit A to the complaint. Strike 3 must attach the order to the subpoena.
The court also authorized Strike 3 to serve the same type of subpoena on another internet service provider identified in response to a subpoena as providing internet service to the defendant. The same requirements apply to any later subpoena issued under the order.
Notice and privacy protections
Strike 3 must attempt to ensure that the defendant learns, as early as possible, that they may proceed anonymously. If Comcast qualifies as a cable operator under 47 U.S.C. § 522(5), Comcast must send the defendant a copy of the order as required by 47 U.S.C. § 551(c)(2)(B). Strike 3 must also ask Comcast to forward the order to the subscriber whether or not Comcast qualifies as a cable operator. If Comcast declines, Strike 3 must serve the order on the defendant at the same time as, or before, any other service or communication with the defendant.
Strike 3 may use information obtained through the subpoena only to protect and enforce the rights asserted in its complaint. It may not publicly disclose the information without the court’s permission at least until the defendant has had an opportunity to seek permission to proceed anonymously or further discovery has occurred. All references to the defendant’s identity must be redacted and filed under seal until further notice.
The order also requires Comcast or another subpoenaed provider to confer with Strike 3 and prohibits the provider from charging in advance for producing the information. A provider seeking payment must supply a billing summary and cost reports supporting the claimed costs. The provider must preserve subpoenaed information while any timely motion to dismiss is pending.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.