Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 35.151.47.128

Background

Strike 3 Holdings, LLC sued John Doe for copyright infringement. According to the opinion, Strike 3 alleged that John Doe infringed 31 of Strike 3’s adult motion pictures using the BitTorrent protocol. John Doe was identified in the caption by the Internet Protocol address 35.151.47.128.

Strike 3 filed an ex parte application—an application decided without advance participation by the opposing party—for permission to serve a subpoena on a third party before the parties held the conference required by Federal Rule of Civil Procedure 26(f). The requested subpoena sought information from Spectrum, identified as the internet service provider, to determine John Doe’s true name and address.

Ruling

The court found that Strike 3 had sufficiently established its entitlement to the requested early discovery and that good cause existed to serve a third-party subpoena. The court therefore granted Strike 3’s motion.

The court authorized Strike 3 to serve Spectrum with a subpoena under Federal Rule of Civil Procedure 45 seeking the true name and address of the subscriber to whom Spectrum assigned the Internet Protocol address identified in Exhibit A to the complaint. Strike 3 must attach the order and the cited decision by Judge Seeborg to the subpoena.

The order imposed several conditions:

- If Spectrum qualifies as a cable operator under 47 U.S.C. § 522(5), it must send John Doe a copy of the order as required by 47 U.S.C. § 551(c)(2)(B). - Strike 3 must ask Spectrum to forward the order to John Doe regardless of whether Spectrum qualifies as a cable operator. If Spectrum declines, Strike 3 must serve the order on John Doe at the same time as, or before, any other service or communication with him. Strike 3 must file proof of its request or an affidavit stating that Spectrum forwarded the order before Strike 3 communicates with John Doe. - Strike 3 may use information disclosed through the subpoena only to protect and enforce the rights described in its complaint. It may not publicly disclose the information without court 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 order. - Strike 3 must first file an affidavit confirming that it proposed confidentiality to John Doe, along with the relevant communications and descriptions of conversations with him. - Spectrum, or another internet service provider receiving a subpoena under the order, must preserve subpoenaed information while any timely motion to dismiss is being resolved.

What the Order Did Not Decide

The court expressly stated that authorizing discovery did not prevent John Doe from filing a motion to dismiss under Rule 12(b)(6), which challenges whether a complaint states a legally sufficient claim. The court also said it was not prejudging such a motion. The opinion therefore authorized discovery to identify John Doe but did not decide whether the copyright-infringement allegations were legally sufficient or whether John Doe was liable.