Strike 3 Holdings v. John Doe subscriber assigned IP address 73.189.241.101
- Laurel Beeler
- 3:20-cv-05912
- U.S. District Court · Northern District of California
- 8
In Strike 3 Holdings v. John Doe, Judge Beeler allowed early discovery from Comcast to identify the person allegedly infringing Strike 3’s copyrights.
Strike 3 Holdings may subpoena Comcast Cable Communications, LLC for the name and addresses associated with the IP address. The unidentified Doe defendant receives notice and an opportunity to challenge the subpoena, and Comcast must follow the order’s preservation, cost, confidentiality, and disclosure limits.
What happened
Strike 3 Holdings, LLC sued an unidentified person associated with IP address 73.189.241.101, alleging that the person used BitTorrent to download and distribute 44 copyrighted adult movies. Strike 3 asked to subpoena Comcast Cable Communications, LLC for the subscriber’s name and addresses.
The court found good cause for early discovery because Strike 3 had identified a specific potential defendant, described its efforts to identify that person, stated a copyright claim that could withstand dismissal, and showed that Comcast was likely to have identifying information. The court also recognized that the subscriber might not be the alleged infringer and that the allegations involved sensitive personal matters.
Judge Laurel Beeler granted Strike 3’s motion for expedited discovery. Strike 3 may immediately serve Comcast with a subpoena, subject to notice and an opportunity for the Doe defendant to challenge it; information Comcast provides must be kept confidential under the order’s stated conditions.
The detailed version
- Strike 3 Holdings v. John Doe subscriber assigned IP address 73.189.241.101 · No. 3:20-cv-05912
- Laurel Beeler
- Oct. 13, 2020
Background
Strike 3 Holdings, LLC alleged that the unidentified defendant associated with IP address 73.189.241.101 used BitTorrent to download and distribute Strike 3’s copyrighted adult motion pictures without permission. Strike 3 alleged that its monitoring system connected to the IP address, downloaded files containing copies of its movies, and confirmed the files through BitTorrent’s identifying data. Strike 3 said the activity involved 44 movies over an extended period.
Strike 3 filed one copyright-infringement claim under the Copyright Act. Because it could not identify the individual associated with the IP address, it filed an ex parte application—an application made without first notifying the opposing party—for permission to subpoena Comcast Cable Communications, LLC, the internet service provider. Strike 3 said the subpoena would seek only the name and address of the individual or individuals associated with the IP address.
Legal Standard
The court explained that Federal Rule of Civil Procedure 26(d) allows early discovery before the parties’ usual initial discovery conference when justice and convenience support it. Courts in the Ninth Circuit generally require a showing of “good cause.” For discovery aimed at identifying an unknown defendant, the court considered whether Strike 3: (1) identified the Doe defendant specifically enough to show that the person could be sued in federal court; (2) described its efforts to locate and identify the person; (3) alleged a claim that could survive a motion to dismiss; and (4) showed that the requested discovery was reasonably likely to produce information allowing service of process.
Analysis
The court found that Strike 3 satisfied all four requirements. First, the allegations that the Doe defendant directed a BitTorrent client to download and distribute the movies identified an adult who likely was the IP-address subscriber or someone residing with and known to the subscriber. Strike 3 also traced the downloads to the Northern District of California, which the court said supported jurisdiction over the defendant and the federal claim.
Second, Strike 3 described its efforts to identify the person and explained that the IP address alone was insufficient. Third, the court concluded that Strike 3 had sufficiently alleged a prima facie copyright-infringement claim. A prima facie claim is a claim supported by enough initial facts to proceed. The court noted that copyright ownership and violation of an exclusive copyright right are required, and that Strike 3 alleged ownership of the movies and unauthorized copying and distribution.
Fourth, the court found that the requested discovery was reasonably likely to identify the Doe defendant because Comcast could allegedly connect the IP address to the subscriber’s identifying information.
Protective Order
The court issued a limited protective order because the subscriber might be an innocent third party and the allegations concerned sensitive and personal matters. Information about the Doe defendant that Comcast released to Strike 3 must remain confidential for the limited period specified by the order. Strike 3 may not publicly disclose the information before the Doe defendant has an opportunity to ask to proceed anonymously and the court rules on that request. The order also addresses possible sealed filings containing identifying information.
Disposition
The court granted Strike 3 Holdings’s ex parte motion for expedited discovery. Strike 3 may immediately serve Comcast with a subpoena under Federal Rule of Civil Procedure 45 seeking the Doe defendant’s true name and addresses, and it must attach the court’s order.
Comcast must serve the Doe defendant with the subpoena and order within 30 days after service on Comcast. The Doe defendant then has 30 days after service to file a motion contesting the subpoena, including a motion to quash or modify it. If no timely challenge is filed, Comcast has 10 days to provide the responsive information to Strike 3. The subpoenaed entity must preserve the information while any timely motion to quash is resolved, and information obtained under the subpoena may be used only to protect Strike 3’s rights described in its complaint.
Read the full 8-page opinion on CourtListener, the free public archive maintained by the Free Law Project.