Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 73.202.170.20

Background

Strike 3 alleged that it owns copyrights in certain adult motion pictures and that an unidentified defendant used a device connected to Internet Protocol address 73.202.170.20 to download and distribute copies of those works through BitTorrent without authorization. Strike 3 alleged that its investigative tool, VXN Scan, connected with the device, obtained torrent information, and compared downloaded files with Strike 3’s copyrighted works.

Strike 3 alleged that MaxMind’s geolocation tool linked the IP address to a physical address in the Northern District of California and identified Comcast Cable Communications, LLC as the Internet service provider associated with the address. Strike 3 sought permission to serve Comcast with a subpoena requesting only the name and physical address of the person whose account was associated with the IP address.

Early subpoena

Federal Rule of Civil Procedure 26 generally bars discovery before the parties’ required conference, but allows a court to authorize earlier discovery for good cause. The court applied factors concerning whether the defendant was likely a real person subject to suit, the plaintiff’s efforts to identify the person, whether the complaint could withstand a motion to dismiss, and whether the discovery was likely to produce information allowing identification and service.

The court found that all four factors favored Strike 3. It found that the allegations plausibly described an identifiable individual who could be sued and that the IP address had been traced to the district. The court also found Strike 3’s efforts to identify the person sufficient, including its alleged web searches, research, consultations, and expert evidence that Comcast was the only entity able to connect the IP address to a subscriber.

The court concluded that Strike 3 had adequately pleaded copyright infringement at this stage. It stated that Strike 3 alleged ownership of the copyrights and unauthorized downloading and distribution, and that the complaint could withstand a motion to dismiss. The court expressly did not decide the ultimate merits of the case.

The court further found that Comcast was likely to have the subscriber’s name and physical address and that the subpoena was narrow. It concluded that the need to identify the defendant so the case could proceed outweighed the burden and potential prejudice from the limited request.

Protective order

The court found good cause for a protective order under Federal Rule of Civil Procedure 26(c). It reasoned that the allegations involved sensitive and highly personal material and that Comcast’s records might identify an innocent third party rather than the alleged infringer.

The court ordered that information Comcast produced in response to the subpoena be treated as confidential under the restrictions applicable to material designated confidential under the Northern District of California’s Model Protective Order for Standard Litigation. That treatment would continue until the court ruled on a motion by the unidentified defendant or another affected third party concerning continued confidentiality or permission to proceed anonymously.

The order also required Strike 3’s notice to the person identified by Comcast to include or attach the court’s order. If that person sought permission to proceed anonymously and included identifying information in the request, the request would be filed under seal until the court could rule on it.

Disposition

The court GRANTED Strike 3’s ex parte application for leave to serve a limited, early third-party subpoena on Comcast and ISSUED a limited protective order. The order concerned discovery and confidentiality; it did not determine liability for copyright infringement. Judge Peter H. Kang signed the order.