Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 104.2.24.63

Background

Strike 3 Holdings, LLC alleged that the unidentified defendant using IP address 104.2.24.63 downloaded and distributed Strike 3’s copyrighted adult motion pictures through BitTorrent. Strike 3 alleged that its detection system made direct connections with the IP address, downloaded files containing copies of its movies, and confirmed the files’ identity through BitTorrent data. Strike 3 also alleged that it did not authorize the distribution.

Strike 3 filed one copyright-infringement claim under the Copyright Act. Because it could not identify the individual associated with the IP address, it filed an ex parte application asking for permission to serve a subpoena under Federal Rule of Civil Procedure 45 on nonparty AT&T Inc., the internet-service provider. Strike 3 said the subpoena would be limited to the name and address of the individual or individuals associated with the IP address.

Legal standard

Under Federal Rule of Civil Procedure 26(d), a court may permit discovery before the parties’ usual initial discovery conference. Courts in the Ninth Circuit generally require a showing of “good cause,” meaning that the need for early discovery, considering the administration of justice, outweighs the potential prejudice to the responding party.

The court applied four factors: whether the plaintiff identified the unknown defendant specifically enough to show that the person is real and can be sued in federal court; whether the plaintiff described its efforts to locate and identify the person; whether the complaint could withstand a motion to dismiss; and whether the requested discovery was reasonably likely to produce information allowing service of process.

Analysis

The court held that Strike 3 satisfied all four factors. First, Strike 3 alleged that the Doe defendant intentionally directed a BitTorrent client to download and distribute the movies. The court said these allegations indicated an identifiable adult who was likely either the primary subscriber of the IP address or someone who lived with and was known to the subscriber. Strike 3 had also traced the downloads to the Northern District of California, which the court said supported jurisdiction over the defendant and the federal copyright claim.

Second, the court found that Strike 3 had described its efforts to identify the defendant and explained why the IP address alone was insufficient. Third, the court found that Strike 3 had sufficiently alleged a prima facie copyright-infringement claim for purposes of early discovery by alleging that it owned the copyrights and that the defendant copied and distributed the movies without permission. Fourth, the court found that AT&T could identify the defendant through the IP address.

The court’s ruling authorized discovery; it did not determine that the Doe defendant was the person who infringed Strike 3’s copyrights or decide the ultimate merits of the copyright claim.

Protective order

Because the internet subscriber might not be the person who committed the alleged infringement, and because the allegations involved sensitive personal matters, the court imposed a limited protective order. Information that AT&T disclosed to Strike 3 could not be publicly disclosed until the Doe defendant had an opportunity to ask to proceed anonymously and the court ruled on that request.

If the Doe defendant did not file such a request within 30 days after the information was disclosed to Strike 3’s counsel, the limited protective order would expire. If the Doe defendant included identifying information in an anonymity request, the court directed that the relevant papers could be filed under seal while the court considered the request.

Disposition

The court granted Strike 3’s ex parte motion for expedited discovery. Strike 3 could immediately serve AT&T with a Rule 45 subpoena seeking the Doe defendant’s true name and addresses, and the subpoena had to include a copy of the order.

AT&T would have 30 days after service to notify the Doe defendant and provide a copy of the subpoena and order. The Doe defendant would then have 30 days to file a motion contesting the subpoena, including a motion to quash or modify it. If that period expired without a challenge, AT&T would have 10 days to produce responsive information to Strike 3. The subpoenaed entity also had to preserve the information while any timely motion to quash was pending. Any information disclosed could be used only to protect Strike 3’s rights as described in its complaint.