Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 71.202.253.28

Background

Strike 3 Holdings, LLC alleged that the person using Comcast Cable’s internet-protocol address 71.202.253.28 used BitTorrent to download and distribute Strike 3’s copyrighted adult motion pictures. Strike 3 stated that its detection system connected directly with the internet address, downloaded files containing copies of its movies, and confirmed the files through BitTorrent identification data. Strike 3 alleged that it owned the copyrights and had not authorized the distribution.

Strike 3 filed one copyright-infringement claim against the unidentified defendant. It then applied for permission to serve Comcast Cable, a non-party internet-service provider, with a subpoena under Federal Rule of Civil Procedure 45. Strike 3 said the subpoena would seek only the name and address of the person or people associated with the internet address.

Early Discovery Analysis

The court applied the good-cause standard generally used for early discovery before the parties’ Rule 26(f) conference. It examined whether Strike 3 had: identified a real person who could be sued in federal court; described its efforts to identify that person; shown that its complaint could withstand a motion to dismiss; and shown that the requested discovery was reasonably likely to produce information allowing service of process.

The court found that Strike 3 satisfied all four factors. The allegations identified an adult who likely was the primary subscriber or someone residing with and known to the subscriber. Strike 3 had traced the downloads to the Northern District of California, and the court found that this supported jurisdiction over the defendant and the federal copyright claim. The court also found that Strike 3 had adequately alleged copyright ownership and unauthorized copying and distribution, making a preliminary copyright-infringement claim sufficient to proceed past a motion to dismiss. Finally, the court found that Comcast could identify the defendant through the internet address.

Protective Order

The court issued a limited protective order because the subscriber might not be the person who infringed the copyrights and because the allegations involved sensitive and personal matters. Information Comcast provides to Strike 3 must remain confidential and may not be publicly disclosed 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 the information is disclosed to Strike 3’s counsel, the limited protective order will expire. Any identifying information included in an anonymity request may be filed under seal while the court considers that request.

Order

The court granted Strike 3’s ex parte application for expedited discovery. Strike 3 may immediately serve Comcast Cable with a Rule 45 subpoena seeking the Doe defendant’s true name and addresses, and it must attach the order to the subpoena. Comcast must notify the Doe defendant within 30 days after service. The Doe defendant then has 30 days after receiving notice to file a motion challenging, quashing, or modifying the subpoena. If no timely challenge is filed, Comcast has 10 days to provide the responsive information to Strike 3.

The order also requires preservation of the subpoenaed information while any timely challenge is pending. Comcast must confer with Strike 3 before charging production costs, may not charge in advance, and must provide billing information supporting any claimed costs. Strike 3 may use information obtained through the subpoena only to protect the rights described in its complaint. Judge Laurel Beeler signed the order as a United States Magistrate Judge.