Strike 3 Holdings, LLC v. Doe

Background

Strike 3 Holdings, LLC alleges that “John Doe,” identified only by Internet Protocol address 24.46.38.122, downloaded, copied, and distributed Strike 3’s copyrighted movies in violation of the Copyright Act. Because Strike 3 did not know the defendant’s name or address, it sought permission to serve a third-party subpoena on CSC Holdings LLC, identified as Optimum Fiber and the defendant’s internet service provider. The subpoena sought information that could identify and allow service on John Doe.

Expedited discovery

The court applied the standard used for expedited discovery, meaning discovery allowed before the parties would ordinarily begin that process. The court found that Strike 3 had made an initial showing of copyright infringement by describing its copyrighted works and providing an analysis of the alleged copying, including dates and times. The court also found that the request was limited to the subscriber’s name and address, that Strike 3 had no reasonable alternative way to obtain the information, and that the information was necessary to serve the defendant and pursue the case. The court recognized that the allegations involved adult movies and could cause embarrassment, but found that the defendant had only a limited privacy expectation in the alleged transmission or distribution of copyrighted material.

Ruling and protections

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. It may not subpoena John Doe’s phone number or email address.

The court also issued a protective order. John Doe may proceed anonymously unless the court orders otherwise, and Strike 3 may not begin settlement discussions before serving the complaint unless the court gives permission. If John Doe begins settlement discussions, Strike 3 may participate and settle the case.

The internet provider has 60 days after being served with the subpoena to notify John Doe and provide the subpoena, order, and notice. John Doe then has 60 days after receiving that material to file a motion challenging the subpoena, including a motion to cancel or change it. The provider may not release identifying information during that period or while a timely challenge is pending. If there is no challenge, the provider has 10 additional days to produce the responsive information. The provider must preserve the information while any timely challenge is unresolved.

Any information disclosed may be used only to protect Strike 3’s rights described in the complaint. Strike 3’s deadline to serve the summons and complaint is extended to 45 days after it receives the information from the provider. 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 warned that failing to submit those updates on time may result in dismissal for failure to prosecute. The Clerk was directed to terminate Docket No. 6.