Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that “John Doe,” identified only by Internet Protocol address 173.52.214.25, 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 Verizon Online LLC, the defendant’s internet service provider, to obtain the subscriber’s name and address, investigate the alleged infringement, and serve the lawsuit.

Court’s Analysis

The court applied the standard used for expedited discovery—discovery allowed before the usual schedule when there is good cause and the request is reasonable. The court considered whether Strike 3 had shown a possible actionable claim, whether the request was specific, whether other ways existed to obtain the information, whether the information was needed to continue the case, and the defendant’s privacy expectations.

The court concluded that Strike 3 had made an initial showing of copyright infringement by describing its original copyrighted works and providing a detailed analysis of the alleged infringements, including dates, times, and locations. The court found that the request was limited to the subscriber’s name and address, that Strike 3 had no other way to obtain the information, and that the information was needed to serve the defendant and pursue the case. Although identification in a case involving adult movies could cause embarrassment, the court found that the defendant had only a limited privacy expectation regarding the alleged transmission or distribution of copyrighted material and that a protective order would address some privacy concerns.

Ruling and Protections

The court GRANTED Strike 3’s motion for leave to serve a third-party subpoena on the internet provider for the defendant’s name and address. Strike 3 must include the court’s order and the attached “Notice to Defendant” with the subpoena. Strike 3 may not subpoena the defendant’s phone number or email address.

The defendant may proceed anonymously unless the court orders otherwise. Strike 3 may not begin settlement discussions before serving the Complaint without the court’s permission, although it may participate in settlement discussions initiated by the defendant.

The internet provider has 60 days after being served with the subpoena to notify the defendant and provide the required materials. The defendant then has 60 days after receiving notice to file a motion challenging the subpoena, including a motion to cancel or change it. The provider may not disclose identifying information before that period ends or while a timely challenge is pending. If no challenge is filed, the provider has 10 additional days to produce the requested information. The provider must preserve the information while any timely challenge is pending.

Any information disclosed may be used only to protect Strike 3’s rights described in the Complaint. Strike 3’s time to serve the summons and Complaint is extended to 45 days after receiving the information from the provider. Strike 3 must also submit a status letter every 60 days until the defendant answers or otherwise responds; the court stated that failure to do so may result in dismissal for failure to prosecute.