Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 24.6.101.144

Background

Strike 3 Holdings, LLC alleged that it owns copyrights in certain adult motion pictures and that an unidentified defendant used an Internet Protocol (IP) address, 24.6.101.144, to download and distribute copies of those works through BitTorrent without authorization. Strike 3 said its investigation used a geolocation service and its own technology to link the alleged activity to the IP address. It alleged that Comcast Cable Communications LLC was the Internet service provider associated with that address.

Strike 3 filed a copyright-infringement complaint against “John Doe” because it did not yet know the defendant’s identity. It then filed an application, without opposition from the unidentified defendant, for permission to serve Comcast with a subpoena before the parties’ required discovery conference. The proposed subpoena sought only the name and physical address of the person associated with the Comcast account for the specified IP address.

Early subpoena

Federal Rule of Civil Procedure 26 generally prevents discovery before the parties’ Rule 26(f) conference, but permits a court to authorize earlier discovery for good cause. The court applied factors concerning whether the defendant was likely a real person who could be sued, the steps Strike 3 took to identify the defendant, whether the complaint could survive a motion to dismiss, and whether the subpoena was likely to produce identifying information.

The court found that all four factors favored Strike 3. It determined that the allegations suggested the defendant was an identifiable person, that Strike 3 had made sufficient efforts to locate the person, and that the complaint sufficiently pleaded a preliminary claim for direct copyright infringement. The court expressly stated that it was not deciding the ultimate merits of the copyright case. It also found that Comcast was likely to have information linking the IP address to a subscriber and that the subpoena’s narrow scope limited the burden on Comcast.

The court therefore granted Strike 3’s application for leave to serve the limited, early third-party subpoena on Comcast before the Rule 26(f) conference.

Protective order

The court separately considered whether to protect the privacy of the person Comcast identified. It found good cause because the allegations involved sensitive and highly personal adult motion pictures, and because the Comcast subscriber might be an innocent third party rather than the person who allegedly infringed the copyrights.

The court issued a limited protective order on its own motion. Information Comcast produces in response to the subpoena must be treated as confidential under the restrictions applicable to “Confidential” material in the Northern District of California’s Model Protective Order for Standard Litigation. That treatment continues until the court rules on a motion by John Doe or another affected third party seeking continued confidential treatment or permission to proceed anonymously.

The order also states that the person identified by Comcast has thirty days after receiving notice from Strike 3 that Comcast produced the information to file a motion to proceed anonymously. Any notice must include or attach the court’s order. If identifying information is included in a request to proceed anonymously, the request may be filed under seal while the court considers it.

Disposition

The court granted Strike 3’s ex parte application for leave to serve the limited subpoena and issued the limited protective order. The order did not decide whether John Doe actually infringed Strike 3’s copyrights.