Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that John Doe, whom it knew only through the Internet Protocol address 96.224.54.240, illegally downloaded and distributed Strike 3’s copyrighted adult motion pictures using the BitTorrent file-sharing system. Strike 3 asked for permission to serve Verizon Online LLC, Doe’s internet service provider, with a subpoena before the parties’ initial conference. The subpoena sought Doe’s true name and address so Strike 3 could serve Doe and pursue the case.

Court’s Analysis

Federal Rule of Civil Procedure 26(d)(1) generally prevents a party from seeking discovery before the parties’ required conference unless the court authorizes it. The court applied the standard of reasonableness and good cause and considered five factors:

- Strike 3 made a concrete preliminary showing of copyright infringement by identifying the copyrighted works and describing the alleged unauthorized copying and distribution, supported by forensic evidence. - The request was specific because it sought only the name and address associated with the identified Internet Protocol address. - Strike 3 had no practical alternative way to obtain the information because BitTorrent is largely anonymous and the internet service provider is the entity that can connect the Internet Protocol address to a subscriber’s identity. - The information was necessary for Strike 3 to serve Doe and move the case forward. - Although viewing and sharing adult movies could cause embarrassment, the court found that Doe had only a minimal privacy expectation in sharing copyrighted material and that Strike 3’s interest in identifying Doe outweighed that privacy interest.

The court nevertheless ordered protections because of the risk of false identification and the resulting potential for annoyance, embarrassment, oppression, or undue burden.

Ruling

Judge Engelmayer granted Strike 3’s motion. Strike 3 may serve Verizon Online LLC with a Federal Rule of Civil Procedure 45 subpoena seeking only John 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 court’s order and a notice to Doe.

Verizon has 60 days after being served with the subpoena to provide Doe with copies of the subpoena, the order, and the notice. Doe has 60 days after service of the subpoena to challenge it, including by seeking to quash or modify it, or to request permission to litigate anonymously. If Doe contests the subpoena, Doe must notify Verizon, which must withhold the contact information until the court rules. If neither Doe nor Verizon contests the subpoena within 60 days, Verizon has 10 days to produce the responsive information. Strike 3 may use disclosed information only to protect its rights stated in the complaint.