Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that “John Doe,” identified only by Internet Protocol address 108.1.113.81, downloaded, copied, and distributed Strike 3’s copyrighted works in violation of the Copyright Act. Strike 3 sought permission to serve Verizon Online LLC, identified as the defendant’s internet service provider, with a third-party subpoena to obtain the subscriber’s name and address, investigate the alleged infringement, and serve the defendant.

Expedited discovery

The court applied a flexible reasonableness-and-good-cause standard for expedited discovery, meaning discovery allowed before the usual schedule when the requesting party shows a sufficient need. The court considered five factors:

- Strike 3 made a preliminary showing of copyright infringement by describing its copyrighted works and providing details about the alleged copying, including dates, times, and locations. - The requested discovery was limited to the subscriber’s true name and address associated with the specified Internet Protocol address. - Strike 3 stated that it had no other practical way to obtain the information. - Without the information, Strike 3 said it could not identify or serve the defendant or continue the litigation. - Although identifying a person in a case involving adult movies could cause embarrassment, the court found that internet subscribers have only a limited privacy expectation concerning the transmission or distribution of copyrighted material. The protective order would provide additional protection.

Ruling and protections

The court granted Strike 3’s motion for permission to serve the subpoena. Strike 3 must attach the order and the required notice to the subpoena. The subpoena may seek only John Doe’s name and address; it may not seek a phone number or email address.

The court also ordered that John Doe may proceed anonymously unless the court orders otherwise. Strike 3 may not begin settlement discussions before serving the complaint unless the court permits it, although Strike 3 may participate if John Doe initiates those discussions.

Verizon, if subpoenaed under the order, must notify John Doe within 60 days after receiving the subpoena. John Doe then has 60 days after receiving notice to file a motion challenging the subpoena, including a motion to cancel or change it. Verizon may not disclose identifying information before that period expires, or while a timely challenge is pending. If no challenge is filed, Verizon has 10 additional days to provide the subpoenaed information. Verizon must preserve the information while a timely challenge is unresolved.

Any information disclosed may be used only to protect Strike 3’s rights asserted in the complaint. Strike 3’s deadline to serve the summons and complaint is extended to 45 days after receiving the information from Verizon. Strike 3 must also submit a letter to the court every 60 days describing its efforts to obtain the information and serve John Doe until John Doe answers or otherwise responds. The court warned that failing to submit the letters on time may result in dismissal for failure to prosecute.

Disposition

The order addressed discovery and case-management procedures; it did not decide whether John Doe actually infringed Strike 3’s copyrights. The clerk was directed to terminate the motion listed as ECF No. 6.

The opinion’s body and notice identify the judge as Jessica G. L. Clarke, while the signature block reads “Tessica G. L. Clarke.” The metadata above follows the name in the signature block.