Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 73.70.126.123
- Edward Davila
- 5:24-cv-04554
- U.S. District Court · Northern District of California
- 7
In Strike 3 Holdings v. John Doe, Judge Davila allowed early discovery from Comcast but protected the subscriber’s identity.
Strike 3 Holdings, LLC may obtain identifying information from Comcast Cable Communications, LLC or another internet service provider. The unknown subscriber associated with IP address 73.70.126.123 may challenge the subpoena or request to proceed under a pseudonym, and the subscriber’s identifying information must remain confidential under the order’s conditions.
What happened
Strike 3 Holdings, LLC sued an unknown person who allegedly used BitTorrent to download and distribute about 28 copyrighted adult films. It asked to subpoena Comcast Cable Communications, LLC for the name and address linked to IP address 73.70.126.123.
The court found that Strike 3 showed good cause for early discovery. It determined that the complaint identified a potentially suable person, described efforts to identify that person, likely stated a copyright-infringement claim, and sought information likely to permit service.
Judge Edward J. Davila granted the application to serve the subpoena, subject to protections. Comcast must notify the subscriber, who may challenge the subpoena or proceed under a pseudonym; the identifying information must remain confidential unless the court orders otherwise.
The detailed version
- Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 73.70.126.123 · No. 5:24-cv-04554
- Edward Davila
- Sept. 19, 2024
Background
Strike 3 Holdings, LLC brought one claim for direct copyright infringement against an unidentified defendant. Strike 3 alleged that the defendant used BitTorrent to download, copy, and distribute about 28 of Strike 3’s copyrighted adult films. Strike 3 used its infringement-detection system and geolocation technology to identify IP address 73.70.126.123 as associated with the alleged activity.
Strike 3 asked for permission to serve a third-party subpoena under Federal Rule of Civil Procedure 45 on Comcast Cable Communications, LLC, the internet service provider associated with the IP address. The subpoena sought the defendant’s true name and address so Strike 3 could identify and serve the defendant.
Legal standard
The court explained that Federal Rule of Civil Procedure 26(d) allows early discovery before the parties’ usual initial conference when there is good cause. Courts assess whether the need for early discovery, considering the administration of justice, outweighs possible prejudice to the responding party.
For a request to identify an unknown defendant, the court considered whether Strike 3: (1) identified the defendant specifically enough for the court to determine that the defendant was a real person who could be sued in federal court; (2) described efforts to locate and identify the defendant; (3) showed at this preliminary stage that the action could withstand a motion to dismiss; and (4) showed that 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 requirements. First, Strike 3 alleged that BitTorrent activity required a human user and used geolocation technology to trace the IP address to a location within the Northern District of California.
Second, Strike 3 described its use of infringement-detection and geolocation technology, web searches, computer investigators, and cybersecurity experts to try to identify the individual associated with the IP address.
Third, the court found that the complaint had preliminarily shown a direct copyright-infringement claim that could withstand a motion to dismiss. The court explained that such a claim requires ownership of the copyrighted material and an alleged violation of at least one exclusive copyright right. Accepting Strike 3’s allegations as true at this stage, the court found those requirements sufficiently alleged.
Fourth, the court found that the subpoena was reasonably likely to produce identifying information because Strike 3 sought only the defendant’s name and address, and the internet service provider was the entity able to match the IP address to its subscriber.
The court also discussed concerns that innocent account holders might be pressured into quickly settling after being identified in a lawsuit involving adult content. It therefore ordered protections for the subscriber’s personal information. The court noted that Strike 3 did not oppose procedural safeguards protecting privacy.
Disposition and conditions
The court GRANTED Strike 3’s application for leave to serve a third-party subpoena. Strike 3 may serve Comcast with a Rule 45 subpoena seeking the defendant’s true name and address and must attach a copy of the order. The order also permits a subpoena to another internet service provider if appropriate.
Within 30 days after being served by Strike 3, the internet service provider must give the subscriber a copy of the subpoena and the order. Within 30 days after receiving them, the subscriber may challenge the subpoena, including by asking the court to cancel or modify it. The subscriber may also ask to proceed under a pseudonym and have identifying information filed confidentially.
If the subscriber does not challenge the subpoena within 30 days, the provider may produce the responsive information within 10 days. Strike 3 may use the information only to protect and enforce the rights asserted in the complaint and may not publicly disclose it without the court’s permission. References to the subscriber’s identity must remain redacted and filed confidentially until further order. The provider must preserve subpoenaed information while any timely motion challenging the subpoena is pending.
Read the full 7-page opinion on CourtListener, the free public archive maintained by the Free Law Project.