Strike 3 Holdings, LLC v. John Doe Subscriber Assigned IP Address 73.71.230.66

Background

Strike 3 Holdings, LLC alleged that the unknown defendant assigned internet protocol address 73.71.230.66 used BitTorrent’s file-sharing network to download and distribute about 24 files containing Strike 3’s copyrighted adult movies. Strike 3 asserted one claim for direct copyright infringement and sought an injunction and statutory damages.

Because Strike 3 did not know the defendant’s name, it filed an ex parte application—an application made without the opposing party’s participation at that stage—for permission to serve a third-party subpoena before the parties’ required Rule 26(f) conference. The requested subpoena would require nonparty Comcast Cable Communications, LLC to identify the subscriber associated with the internet address.

The court noted that Strike 3 has filed thousands of similar lawsuits and subpoena requests. It also discussed concerns raised by other courts that innocent subscribers might be pressured into early settlements because of the embarrassment and expense associated with being publicly identified in these cases. The court therefore addressed both Strike 3’s request for early discovery and safeguards for the unknown subscriber’s privacy.

Legal Standard

Under Federal Rule of Civil Procedure 26(d), a court may authorize discovery before the Rule 26(f) conference when the interests of justice and the parties’ and witnesses’ convenience support it. Courts in the Ninth Circuit generally require good cause. For a subpoena seeking the identity of an unknown defendant, the court considered whether Strike 3: (1) identified the defendant specifically enough to show that the person could be sued in federal court; (2) described efforts to locate and identify the person; (3) showed that the complaint could withstand a motion to dismiss; and (4) showed that the requested discovery was reasonably likely to produce information allowing service of process.

Court’s Analysis

The court found that Strike 3 satisfied all four requirements. First, Strike 3 alleged that BitTorrent’s protocols require a human user to share movies and used geolocation technology to trace the internet address to a location within the district. Second, Strike 3 described using infringement-detection and geolocation technology, web searches, and consultations with computer investigators and cybersecurity consultants.

Third, the court found that the complaint could preliminarily withstand a motion to dismiss. A direct copyright-infringement claim requires ownership of the allegedly infringed material and a violation of at least one exclusive right held by copyright owners. The court accepted Strike 3’s allegations at this stage that it owned the copyrights and that the defendant downloaded, copied, and distributed the movies without permission.

Fourth, the court found that the requested discovery was reasonably likely to identify the defendant because Strike 3 represented that the internet service provider was the only entity able to connect the internet address with the subscriber’s identity.

Protective Measures and Disposition

The court found good cause for a protective order under Federal Rule of Civil Procedure 26(c). It ordered that personal information Comcast produced about the unknown defendant be treated as confidential. It also stated that it would permit and consider a request by the defendant to proceed anonymously under a pseudonym.

The court granted Strike 3’s ex parte application with respect to the defendant. Strike 3 may serve a Rule 45 subpoena on Comcast within 21 days, attaching the order, to request the defendant’s true name and address. Strike 3 may also serve a similar subpoena on another internet service provider identified in Comcast’s response. If applicable, a cable operator must send the defendant a copy of the order.

Within 30 days after being served by Strike 3, the internet service provider must serve the subscriber with the subpoena and the order. Within 30 days after receiving them, the subscriber may contest, quash, or modify the subpoena and may ask to proceed under a pseudonym with identifying information filed under seal. If the subscriber does not contest the subpoena within that period, the provider may produce the responsive information within 10 days.

Strike 3 may use the disclosed information only to protect and enforce the rights asserted in the complaint. It may not publicly disclose the information without the court’s permission, and references to the defendant’s identity must be redacted and filed under seal until further notice. The order also addressed provider costs and required the provider to preserve subpoenaed information while a timely motion to dismiss is pending.