Strike 3 Holdings, LLC v. John Doe Subscriber Assigned IP Address 73.71.188.48

Background

Strike 3 Holdings, LLC asked for permission to serve a Rule 45 subpoena on Comcast Cable Communications, LLC before the parties held the conference required by Federal Rule of Civil Procedure 26(f). Comcast was identified as the internet service provider for the subscriber assigned IP address 73.71.188.48. Strike 3 sought the subscriber’s true name and address so it could identify the defendant.

Court’s analysis

The court found good cause for allowing the early third-party discovery. It determined that Strike 3 had: (1) identified the defendant with enough specificity for the court to determine that the defendant was a real person or entity who could be sued in federal court; (2) identified previous efforts to locate the defendant; (3) shown that its action could withstand a motion to dismiss; and (4) shown a reasonable likelihood that discovery would identify the defendant so service of process could occur.

The court also stated that Strike 3’s application indicated it had satisfied the registration requirements under 17 U.S.C. § 411(a) for beginning a copyright-infringement lawsuit. At the same time, the court noted that a bare allegation that someone is the registered subscriber of an internet protocol address associated with infringing activity is not enough, by itself, to state a plausible claim for direct or contributory copyright infringement. The court nevertheless concluded that, at this stage and based on the record presented, Strike 3 could use discovery to determine the defendant’s identity.

Order

The court granted Strike 3’s application and ordered the following:

- Strike 3 may serve Comcast with a Rule 45 subpoena requiring Comcast to provide the true name and address of the subscriber to whom Comcast assigned IP address 73.71.188.48. Strike 3 must attach a copy of the order to the subpoena. - Comcast must serve the subscriber with copies of the subpoena and the order within 30 days after the subpoena is served on Comcast. Comcast may use any reasonable method, including first-class mail or overnight service to the subscriber’s last known address. - Strike 3 may use information produced in response to the subpoena only to protect and enforce the rights described in its complaint. - Comcast may object to the subpoena and may seek a protective order. - If Comcast provides the subscriber’s identity, Strike 3 may not publicly disclose that information without the subscriber’s consent or permission from the court.

This order authorizes limited early discovery and does not decide whether the subscriber infringed copyright or whether Strike 3 will prevail on its claims.