Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that John Doe, identified only by the Internet Protocol address 70.18.7.105, distributed Strike 3’s copyrighted adult movies in violation of the Copyright Act. Strike 3 did not yet know Doe’s name or address. It asked for permission to serve a third-party subpoena—a subpoena directed to someone who is not a party to the lawsuit—on Doe’s internet service provider, Verizon Internet Services.

The request sought expedited discovery, meaning discovery allowed before the parties’ usual initial conference. Under Federal Rule of Civil Procedure 26(d)(1), such early discovery requires a court order. The court applied a flexible “reasonableness and good cause” standard and considered whether Strike 3 had shown a possible actionable claim, whether its request was specific, whether other ways existed to obtain the information, whether the information was needed to pursue the claim, and Doe’s privacy interest.

Court’s Analysis

The court found that all of those factors favored Strike 3. It concluded that Strike 3 had made an initial showing of copyright infringement by describing its original works and providing a detailed analysis of how Doe allegedly copied them. The subpoena was limited to Doe’s name and current or permanent address. The court found that without expedited discovery Strike 3 could not identify or serve Doe, and it found no reasonable alternative for obtaining Doe’s identity. It also stated that internet-service-provider subscribers have a minimal expectation of privacy in sharing copyrighted material.

The order did not decide whether Doe infringed Strike 3’s copyrights. It decided only whether Strike 3 could obtain limited identifying information to pursue the lawsuit.

Order

The court granted Strike 3’s motion at ECF No. 7. Strike 3 may immediately serve Verizon with a Rule 45 subpoena seeking only the name and current or permanent address associated with IP address 70.18.7.105. Strike 3 may not request additional information, including an email address or telephone number, and must include the order and a notice to Doe with the subpoena.

Verizon has 60 days after receiving the subpoena to serve Doe with the subpoena, the order, and the notice. Doe then has 60 days after receiving notice to challenge the subpoena, including by asking the court to cancel or modify it, or to request permission to litigate anonymously. If Doe challenges the subpoena, Verizon must not release the identifying information until the court rules. Verizon must preserve the information while a timely challenge is pending.

If neither Doe nor Verizon challenges the subpoena within the 60-day period, Verizon has 10 additional days to provide the responsive information to Strike 3. Strike 3 may use information disclosed under the subpoena only to protect the rights described in its complaint. Strike 3 may not begin settlement discussions before serving the complaint unless the court permits it, although it may participate if Doe initiates those discussions. Judge Sarah Netburn also issued a protective order because of the risk of mistaken identification, annoyance, embarrassment, oppression, or undue burden.