Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that John Doe, identified only through Internet Protocol address 69.112.0.66, downloaded, copied, and distributed Strike 3’s copyrighted movies in violation of the Copyright Act. Strike 3 sought permission to serve a third-party subpoena on Doe’s internet service provider, CSC Holdings LLC (Optimum Online), to obtain Doe’s name and address, investigate the alleged infringement, and serve the complaint.

Reasoning

The court applied the standard used for expedited discovery, meaning discovery permitted before the normal discovery process begins. The court considered whether Strike 3 had shown a preliminary claim of actionable harm, whether the request was specific, whether other ways existed to obtain the information, whether the information was needed to pursue the case, and Doe’s expectation of privacy.

The court found that each factor favored Strike 3. It concluded that Strike 3 had adequately described its copyrighted works and provided detailed allegations about the dates, times, and locations of the alleged infringements. The requested discovery was limited to the subscriber’s name and address associated with the target Internet Protocol address. The court also found that Strike 3 had no reasonable alternative for obtaining Doe’s identity and that the information was necessary to serve Doe and continue the lawsuit. Although the allegations involved adult movies and could cause embarrassment, the court found that internet subscribers have a limited expectation of privacy in transmitting or distributing copyrighted material.

Order

The court granted Strike 3’s motion for leave to serve the third-party subpoena. Strike 3 must attach the order and the required “Notice to Defendant” to the subpoena. The subpoena may seek Doe’s name and address, but not Doe’s phone number or email address.

The court also issued a protective order. John Doe may proceed anonymously unless the court orders otherwise. Strike 3 may not begin settlement discussions before serving the complaint unless the court gives permission, although it may participate if Doe initiates those discussions.

The internet service provider has 60 days after receiving the subpoena to notify Doe and provide Doe with the subpoena, the order, and the notice. Doe then has 60 days after receiving that material to file a motion challenging the subpoena, including a motion to cancel or modify it. The provider may not disclose Doe’s identifying information before that period ends or while a timely challenge is pending. If there is no challenge, the provider has 10 additional days to produce the responsive information.

The provider must preserve subpoenaed information while any timely challenge is resolved. Any information disclosed may be used only to protect Strike 3’s rights described in the complaint. Strike 3’s deadline to serve the summons and complaint was extended to 45 days after receiving information from the provider. Strike 3 must also submit a status letter every 60 days until Doe answers or otherwise responds; the court stated that failing to do so could result in dismissal for failure to prosecute.

This was a discovery and case-management order. Judge Jessica G. L. Clarke did not decide whether Doe actually infringed Strike 3’s copyrights.