Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 73.63.133.173

Background

Strike 3 Holdings, LLC alleged that the unidentified defendant used internet address 73.63.133.173 to download and distribute a large number of Strike 3’s copyrighted adult motion pictures through the BitTorrent network. Strike 3 said its proprietary forensic software identified the internet address but not the defendant’s true identity.

Strike 3 applied for permission to serve a subpoena on Comcast Cable Communications, LLC before the parties held the conference that ordinarily occurs early in a federal lawsuit. The requested information was intended to identify the Doe defendant, further investigate the alleged infringement, and allow Strike 3 to serve the defendant.

Court’s analysis

The court applied the standard requiring a plaintiff to show “good cause” for discovery before that conference. The court considered whether Strike 3 had identified a real potential defendant with enough specificity, described steps taken to identify that person, shown that its copyright claim could withstand a motion to dismiss, and shown that the discovery was reasonably likely to produce information permitting service.

The court found those requirements satisfied. It concluded that the alleged direct connections to the internet address and the geolocation information identifying a physical address within the Northern District of California sufficiently identified a person who could be sued in federal court. The court also found that Strike 3 had adequately alleged ownership of registered copyrights and unauthorized copying and distribution, and that the subpoena was reasonably likely to produce information needed for service.

Ruling

Judge Robert M. Illman granted Strike 3’s application for leave to serve a third-party subpoena before the required conference. Strike 3 may immediately serve a subpoena under Federal Rule of Civil Procedure 45 on Comcast to obtain the Doe defendant’s true name and addresses. The order also permits subpoenas to later-identified internet-service providers under the same requirements.

The subpoenaed provider must notify the Doe defendant within 30 days after service. The Doe defendant then has 30 days after receiving notice to contest the subpoena, including by asking the issuing court to quash or modify it. If no timely challenge is filed, the provider has 10 days to produce the requested information. The provider must preserve subpoenaed information while any timely challenge is pending.

Information disclosed to Strike 3 must remain confidential until the Doe defendant has an opportunity to ask to proceed anonymously and the court rules on that request. If the Doe defendant does not file such a request within 30 days after Strike 3’s counsel receives the information, the limited protective order expires. The disclosed information may be used only to protect Strike 3’s rights described in the complaint.