Strike 3 Holdings, LLC v. John Doe Subscriber Assigned IP Address 73.92.245.29

Background

Strike 3 Holdings, LLC owns copyrights to several adult motion pictures. It alleged that the unknown defendant associated with IP address 73.92.245.29 used BitTorrent to download and distribute about 25 files containing Strike 3’s copyrighted material. Strike 3 sued the unidentified defendant for copyright infringement and sought an injunction and statutory damages.

Strike 3 applied for permission to serve a subpoena on nonparty Comcast Cable Communications, LLC before the parties’ required discovery conference. The subpoena would seek the true name and address of the subscriber to whom Comcast assigned the IP address.

Court’s Analysis

Under Federal Rule of Civil Procedure 26(d), a court may permit discovery before the usual discovery conference when there is good cause. The court applied four factors: whether the unknown defendant was identified with enough specificity to be a real person who could be sued in federal court; whether the plaintiff had taken steps to identify the person; whether the complaint could withstand a motion to dismiss; and whether the requested discovery was reasonably likely to produce information permitting service of process.

The court found that Strike 3 satisfied all four factors. Strike 3 alleged that BitTorrent activity required a human user, used geolocation technology to place the IP address within the district, and used web searches and computer investigators to try to identify the defendant. The court also found that Strike 3 had preliminarily alleged copyright ownership and unauthorized downloading, copying, and distribution, so the complaint could withstand a motion to dismiss at this stage. Finally, the court found that the internet service provider was reasonably likely to be able to connect the IP address to a subscriber’s identity.

The court also recognized concerns that the subscriber might be innocent and could face undue pressure or embarrassment if identified. It therefore imposed protective measures governing the use and disclosure of identifying information.

Order

The court granted Strike 3’s ex parte application regarding the defendant assigned IP address 73.92.245.29. Within 21 days, Strike 3 may serve a subpoena under Federal Rule of Civil Procedure 45 on Comcast, attaching a copy of the order. Strike 3 may also serve a similar subpoena on another internet provider identified through the discovery process.

Within 30 days after receiving the subpoena, the internet service provider must serve the subscriber with a copy of the subpoena and the order. Within 30 days after receiving those materials, the defendant may challenge the subpoena, including by asking the court to quash or modify it. The defendant may request to proceed under a pseudonym and ask that identifying information be filed under seal. If the defendant does not challenge the subpoena within that period, the provider may produce 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 order. The order also addresses provider-cost documentation and requires the provider to preserve subpoenaed information while a timely motion to dismiss is pending.

This order authorized early discovery and established privacy protections; it did not determine whether the defendant committed copyright infringement.