Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleges that John Doe, identified by the Internet Protocol address 96.232.186.20, downloaded, copied, and distributed Strike 3’s copyrighted works in violation of the Copyright Act. The complaint identifies the defendant only by the Internet Protocol address.

Strike 3 asked for permission to serve a third-party subpoena on Verizon Online LLC, identified as the defendant’s internet service provider. The requested subpoena sought the true name and address of the subscriber associated with the Internet Protocol address. Strike 3 said it needed that information to investigate the alleged infringement, serve the defendant, and pursue the case.

Court’s analysis

The court applied the standard used for expedited discovery, meaning discovery allowed before the usual discovery process begins. The court considered whether Strike 3 had shown an initial actionable claim, whether the request was specific, whether other ways existed to obtain the information, whether the information was needed to advance the case, and the defendant’s privacy expectations.

The court found 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 their dates, times, and locations. The court found the subpoena sufficiently specific because it sought only the subscriber’s name and address and no more information than necessary to identify and serve the defendant.

The court also found that Strike 3 could obtain the defendant’s information only through the subpoena and that, without it, Strike 3 could not serve the defendant or continue the litigation. Although identification in a case involving adult movies could cause embarrassment, the court found that internet subscribers have a limited privacy expectation regarding the transmission or distribution of copyrighted material. The court also relied on the protective measures it ordered.

Ruling and protective measures

The court granted Strike 3’s motion for leave to serve a third-party subpoena on Verizon to obtain the defendant’s name and address. Strike 3 must attach the order and the “Notice to Defendant” to the subpoena. Strike 3 may not subpoena the defendant’s telephone number or email address.

The court issued a protective order allowing the defendant to proceed anonymously as John Doe unless the court later orders otherwise. Strike 3 may not begin settlement discussions before serving the complaint without the court’s permission, although it may participate if the defendant initiates those discussions.

Verizon must serve the defendant with the subpoena, the order, and the notice within 60 days after receiving the subpoena. The defendant then has 60 days after receiving the subpoena and order to file a motion challenging the subpoena, including a motion to quash or modify it. Verizon may not disclose identifying information before that period ends, or while a timely challenge is pending, unless the court orders disclosure.

If no challenge is filed within the 60-day period, Verizon has 10 days to provide the subpoenaed information to Strike 3. Verizon must preserve the information while any timely motion to quash is pending. Any information disclosed may be used only to protect Strike 3’s rights in this case.

The court extended Strike 3’s time to serve the summons and complaint until 45 days after Strike 3 receives the information from Verizon. Strike 3 must also submit a status letter of no more than two pages every 60 days until John Doe answers or otherwise responds. The court stated that failure to submit the letters on time may result in dismissal for failure to prosecute. The Clerk was directed to terminate ECF No. 6.