Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleged that John Doe, identified only by Internet Protocol address 24.46.38.1, downloaded, copied, and distributed Strike 3’s copyrighted movies in violation of the Copyright Act. Because Strike 3 did not know Doe’s name or address, it moved for permission to serve a third-party subpoena on Doe’s internet service provider, CSC Holdings LLC (Optimum Fiber). The requested information was intended to identify Doe, investigate the alleged infringement, and allow service of the lawsuit.

Reasoning

The court applied the Southern District of New York’s flexible standard for expedited discovery, meaning discovery allowed before the usual discovery process begins. The court considered whether Strike 3 had shown an initial, legally sufficient infringement claim; whether the request was specific; whether other ways existed to obtain the information; whether the information was needed to pursue the case; and Doe’s privacy expectations.

The court found that Strike 3 had adequately described its copyrighted works and provided details about the alleged copying, including dates and times. It also found that the subpoena was limited to the subscriber’s name and address associated with the target IP address, that Strike 3 had no reasonable alternative way to obtain the information, and that the information was necessary to serve Doe and continue the litigation. The court recognized that identifying a person in a case involving adult movies could cause embarrassment but concluded that internet subscribers have a minimal privacy expectation in the transmission or distribution of copyrighted material. The court also found good cause for a protective order to address privacy and other potential burdens.

Ruling and Procedures

The court granted Strike 3’s motion for leave to serve the third-party subpoena. Strike 3 must attach the order and the required “Notice to Defendant” to the subpoena. The subpoena may seek Doe’s name and address, but Strike 3 may not subpoena Doe’s phone number or email address.

Doe may proceed anonymously unless the court orders otherwise. Strike 3 may not begin settlement discussions before serving the complaint unless the court permits it, although it may participate in settlement discussions initiated by Doe. The ISP has 60 days after being served to provide Doe with the subpoena, the order, and the notice. Doe then has 60 days after receiving those materials to file a motion challenging the subpoena, including a motion to cancel or modify it. The ISP may not disclose identifying information before that period ends or while a timely challenge is pending, unless the court later orders disclosure.

If no challenge is filed during the 60-day period, the ISP has 10 days to provide the responsive information to Strike 3. The ISP must preserve the information while any timely challenge is resolved, confer with Strike 3 about production costs, and may not charge in advance. Any information disclosed may be used only to protect the rights asserted in the complaint. Strike 3’s deadline to serve the summons and complaint on Doe is extended to 45 days after Strike 3 receives the information from the ISP. Strike 3 must submit a letter of no more than two pages every 60 days describing its efforts to obtain the information and serve Doe, until Doe answers or otherwise responds. The clerk was directed to terminate Docket No. 6.