Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 73.158.153.38
- Edward Davila
- 5:24-cv-03916
- U.S. District Court · Northern District of California
- 7
In Strike 3 Holdings v. John Doe, Judge Davila allowed a subpoena seeking an unknown subscriber’s identity, with privacy protections.
Strike 3 Holdings, LLC; the unidentified subscriber assigned IP address 73.158.153.38; Comcast Cable Communications, LLC; and any other Internet service provider receiving a subpoena under the order.
What happened
Strike 3 Holdings, LLC sued an unidentified person assigned Internet Protocol address 73.158.153.38, alleging that the person used BitTorrent to download and distribute its copyrighted adult films. Strike 3 asked to subpoena Comcast Cable Communications, LLC for the subscriber’s name and address.
The court found that Strike 3 showed good cause for obtaining this information before the normal discovery process began. It found that Strike 3 had identified a potentially real defendant, described its efforts to identify that person, plausibly stated a copyright-infringement claim, and sought information likely to identify and allow service on the defendant.
Judge Edward J. Davila granted Strike 3’s application to serve the subpoena, subject to conditions. The subscriber must receive the subpoena and order, may challenge or modify the subpoena, and may ask to proceed anonymously. The subscriber’s identifying information must remain sealed, and Strike 3 may not publicly disclose it without the court’s permission.
The detailed version
- Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 73.158.153.38 · No. 5:24-cv-03916
- Edward Davila
- Sept. 19, 2024
Background
Strike 3 Holdings, LLC brought one claim for direct copyright infringement against an unknown individual. Strike 3 alleged that the individual used BitTorrent to download, copy, and distribute about 27 pieces of Strike 3’s copyrighted adult-film material. Strike 3 identified Internet Protocol address 73.158.153.38 through its infringement-detection system and sought early discovery from Comcast Cable Communications, LLC, the Internet service provider associated with that address.
The application asked for permission to serve a third-party subpoena before the parties’ usual discovery conference. Strike 3 sought the defendant’s true name and address so it could identify and serve the defendant.
Legal standard
Under Federal Rule of Civil Procedure 26(d), a court may allow discovery before the parties’ Rule 26(f) conference when good cause exists. The court applied four factors: whether the unknown defendant was identified specifically enough to show that the person could be sued in federal court; whether the plaintiff described its efforts to identify the person; whether the complaint could survive a motion to dismiss; and whether the requested discovery was reasonably likely to produce information allowing service of process.
Court’s analysis
The court found that Strike 3 satisfied all four factors. First, based on the complaint’s allegations about BitTorrent activity and Strike 3’s use of geolocation technology, the court found sufficient specificity to determine that the Doe defendant was a real person who could be sued in federal court.
Second, the court credited Strike 3’s description of its efforts to identify the person, including geolocation and infringement-detection technology, web searches, and consultations with computer investigators and cybersecurity experts.
Third, the court found that the complaint had preliminarily shown a direct-infringement claim that could withstand a motion to dismiss. The court noted that such a claim requires ownership of the allegedly infringed material and a violation of at least one exclusive copyright right. Accepting Strike 3’s allegations as true at this stage, the court found those requirements plausibly alleged.
Fourth, the court found that the requested name and address were reasonably likely to identify the defendant because the Internet service provider was the entity that could match the IP address to its subscriber.
Privacy protections and order
Although the court allowed early discovery, it also imposed protective measures because an innocent or unwitting subscriber might suffer undue prejudice. The court ordered that personal information Comcast produced about the Doe defendant be treated as confidential and allowed the defendant to request permission to proceed under a pseudonym.
The court GRANTED Strike 3’s application. Strike 3 may serve a Federal Rule of Civil Procedure 45 subpoena on Comcast, or on another Internet service provider in the same manner, seeking the defendant’s true name and address. Strike 3 must attach the order to the subpoena. If the provider qualifies as a cable operator under federal law, it must send the defendant a copy of the order.
Within 30 days after being served by Strike 3, the provider must serve the subscriber with the subpoena and the order. Within 30 days after receiving them, the subscriber may contest, quash, or modify the subpoena and may ask to proceed anonymously with identifying information filed under seal. If the subscriber does not contest the subpoena within that period, the provider may produce the responsive information within 10 days.
Strike 3 may use the disclosed information only to protect and enforce the rights asserted in the complaint. It may not publicly disclose the information without the court’s permission, and references to the defendant’s identity must be redacted and filed under seal until further notice. Providers must preserve subpoenaed information while a timely motion is pending. The order did not decide whether the Doe defendant actually infringed Strike 3’s copyrights.
Read the full 7-page opinion on CourtListener, the free public archive maintained by the Free Law Project.