Strike 3 Holdings v. John Doe subscriber assigned IP address 107.199.203.44

Background

Strike 3 Holdings, LLC asked for permission to serve a third-party subpoena on AT&T Internet before the parties held the conference required by Federal Rule of Civil Procedure 26(f). AT&T Internet was identified as the internet service provider for the subscriber assigned IP address 107.199.203.44. The request sought the subscriber’s true name and address so Strike 3 could identify the defendant.

Court’s analysis

The court found good cause for early discovery. It concluded that Strike 3 had shown that:

- it could identify the defendant with enough specificity for the court to determine that the defendant was a real person or entity that could be sued in federal court; - it had described steps already taken to locate the defendant; - its action could withstand a motion to dismiss; and - there was a reasonable likelihood that discovery would identify the defendant and make service of process possible.

The court also noted that Strike 3 had indicated that it satisfied the copyright-registration requirement under 17 U.S.C. § 411(a). At the same time, the court recognized that a bare allegation that someone is the registered subscriber of an IP address linked to infringing activity is not enough, by itself, to state a plausible claim for direct or contributory copyright infringement. On the record before it and at this stage of the case, however, the court determined that Strike 3 could use limited discovery to identify the possible infringer.

Ruling and conditions

The court granted Strike 3’s application. Strike 3 may serve AT&T Internet with a Rule 45 subpoena requiring it to provide the true name and address of the subscriber assigned the specified IP address, and Strike 3 must attach the court’s order to the subpoena.

AT&T Internet must serve the subscriber with copies of the subpoena and order within 30 days after the subpoena is served on AT&T Internet. AT&T Internet may use reasonable methods, including first-class mail or overnight service to the subscriber’s last known address. AT&T Internet may object to the subpoena and may seek a protective order.

Strike 3 may use information produced in response to the subpoena only to protect and enforce the rights described in its complaint. If AT&T Internet provides the subscriber’s identity, Strike 3 may not publicly disclose that information without the subscriber’s consent or permission from the court. Judge Virginia K. DeMarchi signed the order.