Strike 3 Holdings,LLC v. Doe

Background

Strike 3 Holdings, LLC sued an unidentified defendant, John Doe, alleging that Doe downloaded and distributed 35 of Strike 3’s copyrighted motion pictures through the BitTorrent file-sharing system. The opinion states that the movies contain pornographic material. Strike 3 alleged that forensic evidence linked the activity to an Internet Protocol (IP) address but that it did not know the person’s name or physical address.

Strike 3 moved under Federal Rule of Civil Procedure 26(d)(1) for permission to seek discovery before the parties’ initial conference. Specifically, it asked to serve a subpoena under Rule 45 on Optimum Online, the internet service provider associated with the IP address, to identify Doe.

Legal standard and analysis

The court applied the Southern District of New York’s flexible standard of reasonableness and good cause. It considered five factors identified by the Second Circuit: whether the plaintiff showed a preliminary, legally sufficient claim; whether the discovery request was specific; whether other ways existed to obtain the information; whether the information was needed to advance the case; and the defendant’s expectation of privacy.

The court found that all five factors favored Strike 3. First, it held that Strike 3 had made a preliminary showing of copyright infringement by alleging ownership of valid copyrights and unauthorized copying, downloading, and distribution, supported by descriptions of the works and forensic evidence. Second, the requested discovery was limited to the name and address associated with the IP address. Third, the court found that BitTorrent was largely anonymous and that the internet service provider was the only entity able to connect the IP address to a subscriber’s identity. Fourth, without the subpoena, Strike 3 could not identify or serve Doe and the case could not proceed. Fifth, although viewing and distributing adult movies could cause embarrassment, the court found that internet subscribers have only a minimal privacy expectation in sharing copyrighted material and that Strike 3’s interest outweighed Doe’s privacy interest.

Ruling and protective measures

The court granted Strike 3’s motion. It authorized Strike 3 to serve Optimum with a Rule 45 subpoena seeking only Doe’s true name and current and permanent address. The subpoena may not seek additional information, including an email address or telephone number, and must include the order and the attached notice to the defendant.

The court also ordered protections because of the risk of mistaken identification, annoyance, embarrassment, oppression, or undue burden. Optimum has 60 days after being served with the subpoena to serve Doe with the subpoena, the order, and the notice. Doe then has 60 days from service of the subpoena to file a motion challenging the subpoena, including a motion to quash or modify it, or to request permission to litigate anonymously. If Doe challenges the subpoena, Doe must notify Optimum, which must not release contact information while the challenge is pending.

If neither Doe nor Optimum contests the subpoena during the 60-day period, Optimum has 10 days to produce the responsive information. Strike 3 may use information disclosed under the subpoena only to protect its rights described in the complaint. The clerk was directed to close the motion at docket 6. The order authorizes identity-related discovery; it does not enter a final ruling on whether Doe infringed Strike 3’s copyrights.