Strike 3 Holdings v. John Doe subscriber assigned IP address 107.206.152.127

Background

Strike 3 Holdings, LLC sued John Doe for copyright infringement. Strike 3 alleged that John Doe infringed 24 of its adult motion pictures using the BitTorrent protocol. Because the defendant was identified only by an internet protocol address, Strike 3 sought permission to serve a subpoena on the internet service provider before the parties held their required initial conference under Federal Rule of Civil Procedure 26(f).

Ruling

The court found that Strike 3 sufficiently established good cause for the requested early discovery. It granted Strike 3 permission to serve AT&T, identified as the internet service provider, with a subpoena under Rule 45 seeking the true name and address of the subscriber assigned the identified IP address.

The order requires Strike 3 to attach the order and a related prior decision to the subpoena. It also requires notice to John Doe through the internet service provider when applicable, and requires Strike 3 to request that the provider forward the order to the subscriber. If the provider declines, Strike 3 must serve the order on John Doe before or at the same time as any other service or communication, subject to the alternatives stated in the order.

The information obtained through the subpoena may be used only to protect and enforce the rights asserted in Strike 3’s complaint. Strike 3 may not publicly disclose the information without the court’s permission at least until John Doe has had an opportunity to seek permission to proceed anonymously or further discovery has occurred. References to John Doe’s identity must be redacted and filed under seal until further notice. The provider must preserve subpoenaed information while any timely motion to dismiss is pending.

Important Limitations

Judge Edward Chen stated that authorizing early discovery did not prevent John Doe from filing a motion to dismiss for failure to state a claim and did not prejudge any such motion. The court also advised Strike 3 that, after obtaining John Doe’s name and address, it would have an obligation under Rule 11 to determine whether to continue the lawsuit. The opinion quotes authority stating that merely alleging that a person is the subscriber assigned an IP address associated with infringement is insufficient by itself to establish direct or contributory infringement.