Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 47.147.38.61

Background

Strike 3 Holdings, LLC asked for permission to serve a third-party subpoena on Frontier Communications before the parties held the conference generally required at the beginning of a federal case. Frontier was identified as the internet service provider that assigned IP address 47.147.38.61 to the subscriber.

Court’s analysis

The court found good cause for early discovery. It stated that Strike 3 had shown that:

- the defendant was identified specifically enough for the court to determine that the defendant was a real person or entity who could be sued in federal court; - Strike 3 had identified earlier steps taken to locate the defendant; - the lawsuit could withstand a motion to dismiss; and - there was a reasonable likelihood that discovery would identify the defendant so that service of process would be possible.

The court also noted that Strike 3 had indicated that it satisfied the copyright-registration requirements for starting a copyright-infringement lawsuit. At the same time, the court recognized that merely alleging that someone is the subscriber assigned an IP address associated with infringing activity is not enough, by itself, to state a plausible claim for direct or contributory copyright infringement. The court nevertheless concluded that, at this stage and on the record presented, Strike 3 could use limited discovery to determine the defendant’s identity.

Ruling and limits

Magistrate Judge Virginia Demarchi granted Strike 3’s application. Strike 3 may serve a subpoena under Federal Rule of Civil Procedure 45 on Frontier requiring Frontier to provide the subscriber’s true name and address. Strike 3 must attach the order to the subpoena.

Frontier must serve the subscriber with copies of the subpoena and the order within 30 days after the subpoena is served on Frontier. Frontier may use any reasonable method, including first-class mail or overnight service to the subscriber’s last known address. Frontier may object to the subpoena and may seek a protective order.

Strike 3 may use information produced in response to the subpoena only to protect and enforce the rights described in its complaint. If Frontier provides the subscriber’s identity, Strike 3 may not publicly disclose that information without the subscriber’s consent or permission from the court. This order authorized identity-related discovery; it did not determine whether the subscriber infringed copyright or whether Strike 3 will ultimately prevail.